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'ARBITRATION  "  AS  A  TERM  OF 
INTERNATIONAL  LAW 


WORKS  BY  THE  AUTHOR. 

Some  facts  about  Alsace  and  Lorraine,  1895. 

The   Brooke   Family   of   Whitchurch,    Hampshire,    England, 

together  with  an  account  of  Acting-Governor  Robert  Brooke 

of  Maryland  and  Colonel  Ninian  Beall  of  Maryland,  1899. 
The  Alabama  Arbitration,  1900. 
fimeric  Cruc^,  1900. 
The  Alasko-Canadian  Frontier,  1902. 
The  Alaska  Frontier,  1903. 
The  English  Ancestors  of  the  Shippens  and  Edward  Shippen 

of  Philadelphia,  1904. 
The  Swift  Family  of  Philadelphia,  1906. 
Balch  Genealogica,  1907. 
L'fivolution  de  1' Arbitrage  International,  1908. 
La  Baie  d'Hudson,  est  elle  tme  mer  libre  ou  une  mer  ferm^e, 

1911? 
La  Baie  d'Hudson  est  une  grande  mer  ouverte,  1913. 
Diff^rends   jtiridiques    et    politiques    dans    les    rapports    des 

Nations,  19 14. 
The  Influence  of  the  United  States  on  the  Development  of  the 

Law  between  Nations,  19 15. 
Legal  and  Political  International  Questions  and  the  Recurrence 

of  War,  19 16, 
The  Philadelphia  Assemblies,  19 16. 
A  World  Court  in  the  light  of  the  United  States  Supreme 

Court,  19 18. 


ARBITRATION "  AS  A  TERM  OF 
INTERNATIONAL  LAW 


BY 


THOMAS  WILLING  BALCH 

L.  H.  D.  Trinity  College  (Hartford) 

Member  of  the  Philadelphia  Bar 

A  Vice-President  of  the  Historical  Society  of  Pennsylvania 


REPRINTED  FROM  THE  COLUMBIA  LAW  REVIEW 
NOVEMBER  AND  DECEMBER.  1915 


Philadelphia 

ALLEN.  LANE  AND  SCOTT 

1920 


^7.  ^>/ 


i 

(0 


TO 

MY  FRIEND 

JOHN    BASSETT    MOORE 

A  MASTER  OF  THE    SCIENCE  OF   INTERNATIONAL  LAW 


PRELIMINARY  NOTE. 

This  essay  was  originally  published  in  The 
Columbia  Law  Review  in  the  numbers  of  November 
and  December,  19 15.  It  is  now  reprinted  with  the 
kind  permission  of  the  editor  of  The  Review. 

Philadelphia,  June  15TH,  1920. 


"ARBITRATION"   AS  A  TERM   OF   INTER- 
NATIONAL LAW. 

In  spite  of  the  breaking  out  of  The  Great  War, 
involving  in  its  meshes  more  than  half  of  the  land 
on  the  earth  and  the  majority  of  the  great  powers 
of  the  world  as  well  as  many  small  ones,  at  present 
(May,  1915)  ten  in  all,  nevertheless  ample  proof  is  to 
be  found  in  the  historic  development  of  International 
Arbitration,  especially  within  the  past  fifty  years,  as 
a  mechanism  for  settling  differences  between  nations 
by  judicial  means,  that,  thanks  to  the  establishment 
of  the  International  Courts  which  sat  upon  the 
Alabama  Claims  and  the  Bering  Sea  Fur  Seal  Fisheries 
cases  respectively,  a  precious  instrument  to  avoid 
war  in  many  instances  beyond  the  scope  of  diplo- 
matic negotiations  to  settle,  has  been  evolved  in 
the  institution  known  as  International  Arbitration. 
Unfortunately,  of  late  years,  a  tendency  has  arisen 
to  confound  International  Arbitration  with  Munici- 
pal Arbitration  and,  to  minimize  if  not  indeed  to 
deny  entirely  the  judicial  quality  of  arbitration  as 
a  component  part  of  the  Law  between  Nations. 
Doubtless  this  confusion  in  the  thoughts  of  those 


who  have  not  studied  attentively  the  philosophical 
development  of  the  Law  between  Nations  is  largely 
due  to  a  failure  to  realize  that  the  word  Arbitration 
has  come  to  have  different  meanings  according  as 
it  is  used  in  Municipal  Law  on  the  one  hand  and 
International  Law  on  the  other.  It  seems,  there- 
fore, well  worth  while  to  examine  the  meaning  of 
the  word  arbitration,  as  it  has  been  defined  in  the 
older  dictionaries  of  the  English  language,  both  in 
England  and  America,  together  with  the  meaning 
of  the  word  mediation.  Then  to  test  the  sense 
and  meaning  of  the  word  arbitration  as  used  by 
some  of  the  undoubted  masters  of  the  science  of 
the  Law  between  Nations.  And  finally  compare 
the  judgments  given  by  the  Geneva  and  Paris  Inter- 
national Tribunals  in  the  Alabama  Claims  and  the 
Bering  Sea  Fur  Seal  cases  respectively,  with  some 
decisions  rendered  by  some  notable  Municipal 
Courts.  In  that  way  a  just  opinion  as  to  what 
was  intended  by  the  men  who  thought  out  and 
developed  the  institution  of  International  Arbitra- 
tion could  be  formed. 

First  of  all  let  us  see  what  meaning  the  earlier 
English  lexicographers  have  assigned  to  the  word 
arbitration  and  then  what  sense  the  earlier  American 
lexicographers  have  given  to  the  same  word. 


In  the  fourth  edition  of  Edward  PhilHpps's  well 
known  dictionary,  The  New  World  of  Words,  pub- 
lished at  London  in  1678  by  himself,  he  merely  says: 

"Arbitrator  (Lat.)  An  imipire,  a  commissioner, 
chosen  by  mutual  consent  to  decide  controversies 
between  party  and  party." 

In  his  fifth  edition  printed  in  1696,  he  says: 

"Arbitrator,  (Lat.)  An  umpire,  a  commissioner, 
chosen  by  mutual  consent  to  decide  controversies 
between  party  and  party. " 

"Arbitrament,  An  award,  Determination,  or  Judg- 
ment which  one  or  more  make  at  the  request  of  two 
or  more  parties  upon  some  Debt,  Trespass,  or  other 
Controversie." 

In  the  seventh  edition  of  1720,^  much  more  is 
given  in  reference  to  the  general  subject  of  arbitra- 
tion, as  follows: 

"Arbiter,  an  Arbitrator,  an  Umpire,  a  Sovereign 
Disposer.     See  Arbitrator. 

"Arbitrage,  an  Arbitrator's  or  Umpire's  Decree 
or  Sentence. 

"To  arbitrate,  to  award,  give  Sentence,  adjudge, 
or  act  as  an  Arbitrator. 

"Arbitration,  the  Act  of  Arbitrating,  the  Putting 

*  The  New  World  of  Words,  or  Universal  English  Dictionary,  com- 
piled by  Edward  Phillipps,  Gent.     Seventh  edition,  London,  1720. 


an  End  to  a  Difference  by  the  Means  of  Arbi- 
trators. 

"Arbitrator,  an  extraordinary  Judge,  indifferently 
chosen  by  the  mutual  Consent  of  two  Parties,  to 
decide  any  Controversy  between  them;  a  Days- Man 
or  Referee :  The  Civilians  make  a  difference  between 
Arbiter  and  Arbitrator;  the  former  being  obliged  to 
proceed  according  to  Law  and  Equity;  whereas  the 
latter  is  left  wholly  to  his  own  Discretion,  to  act 
without  Solemnity  of  Process,  or  Course  of  Judg- 
ment." 

Thus  PhiUipps,  while  at  first  he  does  not  define 
very  precisely  what  an  arbitrator  is,  gradually  in 
his  succeeding  editions  leans  more  and  more  to  the 
view  that  an  arbitrator  is  a  judge  and  his  decisions 
are  jtidgments.  Again  Phillipps,  in  his  fifth  edition, 
speaks  of  arbitrament  as  being  a  judgment.  In  his 
seventh  edition  of  1720,  the  judicial  quality  of 
arbitration,  using  the  word  in  a  generic  sense,  is 
much  more  marked  and  clearly  stated.  Thus  "to 
arbitrate"  is  said  in  that  edition,  among  other 
definitions,  to  mean  to  "give  sentence,"  and  "to 
adjudge."  And  the  word  "arbitrator"  is  defined 
as  meaning  "an  extraordinary  judge." 

In  the  latter  part  of  the  eighteenth  century, 
Samuel  Johnson,  who  surely  was  a  man  of  letters 


possessed  of  no  small  knowledge  of  the  meaning  of 
his  native  English  tongue,  supports  in  his  Dictionary 
much  more  strongly  and  exactly  than  his  prede- 
cessor Phillipps  the  judicial  character  of  arbitration. 
For  example,  in  the  fourth  edition  of  his  celebrated 
Dictionary  published  in  1773,^  he  says: 

"An  Arbiter,  n.  f.  (Lat.) 

"i.  A  judge  appointed  by  the  parties,  to  whose 
determination  they  voluntarily  submit. 

"2.  One  who  has  the  power  of  decision  or  regula- 
tion;  a  judge. 

"To  Arbitrate,  v.  a.  (arbitror,  Lat.) 

"i.  To  decide;  to  determine. 

"2.  To  judge  of. 

"  To  Arbitrate,  v.  n. 

"  To  give  judgment. 

"Arbitration,  n.  f.  (from  arhitror,  Lat.) 

"The  determination  of  a  cause  by  a  judge  mutually 
agreed  on  by  the  parties  contending. 

"Arbitrator,  n.  f.  (from  arbitrate). 

"i.  An  extraordinary  judge  between  party  and 
party,  chosen  by  their  mutual  consent. 

"Arbitrement,  n.  f.,  (from  arhitror ^  Lat.) 

"i.  Decision;  determination. 

^Samuel  Johnson,  Dictionary   of   the    English  Language:  fourth 
edition,  revised  by  the  Author,  London,  1773. 


6 

"2.  Compromise." 

Thus  Johnson  speaks  of  an  arbiter  as  a  "judge." 
To  arbitrate  he  defines  as  "to  decide"  and  "to 
judge  of. "  "Arbitration"  he  says  is  the  settling  of  a 
question  by  "a  judge  mutually  agreed  on"  by  the 
disputants.  In  the  end  he  defines  the  word  "  arbitra- 
ment" equally  as  meaning  a  decision  and  a  compro- 
mise, two  distinctly  opposite  terms.  But  excepting 
this  last  definition  which  is  one  half  in  favor  of  sup- 
porting the  idea  that  the  group  of  words  described 
by  the  generic  term  "arbitration"  means  an  adjust- 
ment of  a  dispute  upon  the  basis  of  give  and  take 
by  the  disputants,  Johnson  strongly  supports  the 
view  that  in  his  time  the  word  "arbitration"  meant 
the  settlement  of  a  controversy  by  a  judge  chosen 
by  the  parties  concerned  to  decide  that  one  specific 
case. 

Johnson's  support  of  the  judicial  meaning  of  the 
word  arbitration  in  his  time  is  further  attested  by 
his  clear  definitions  of  the  group  of  words  that  may 
be  classified  imder  the  generic  word  mediation.  In 
the  edition  of  1773,  Johnson  says: 

"To  mediate,  v.  n.  (from  medius,  Latin.) 

"  I.  To  interpose  as  an  equal  friend  to  both  parties; 
to  act  indifferently  between  contending  parties;  to 
intercede. 


"2.  To  be  between  two. 

"Mediation,  n.  f.  (mediation,  French;  from 
medius,  Lat.) 

"i.  Interposition;  intervention;  agency  between 
two  parties,  practised  by  a  common  friend. 

"2.  Agency  interposed ;  in tervenient  power. 

"3.  Intercession;  entreaty  for  another. 

"Mediator,  n.  f.  (mediateur,  French.) 

"  I.  One  that  intervenes  between  two  parties. 

"2.  An  intercessor;  an  entreator  for  another;  one 
who  uses  his  influence  in  favor  of  another. 

"3.  One  of  the  characters  of  our  blessed  Saviour. " 

Thus  mediation,  according  to  Johnson's  Dic- 
tionary, clearly  means  an  attempt  to  have  a  diffi- 
culty arranged  by  the  friendly  advice  of  a  third 
party. 

If  we  turn  next  to  American  lexicographers  we 
find  that  Noah  Webster,  in  the  first  edition  of  his 
well  known  Dictionary,^  says : 

"Arbitrate,  v.,  to  hear  and  judge  as  an  arbitrator. 

"Arbitration,  n.,  reference  of  a  controversy  to 
persons  chosen  by  the  parties,  a  hearing  before 
arbitrators,  award. 

"Arbitrator,  n.,  a  person  chosen  by  a  party  to 

'  Noah  Webster,  A  Compendious  Dictionary  oj  the  English  Lan- 
guage, New  Haven,  1806. 


8 

decide  a  controversy,  one  who  has  the  sovereign 
right  to  judge  and  control. " 

"Mediate,  v.,  to  endeavor  to  reconcile,  to  limit. 

"Mediation,  n.,  an  interposition,  agency,  entreaty. 

"Mediator,  n.,  an  intercessor,  kind  adviser, 
manager. " 

A  comparison  of  the  above  two  groups  of  words, 
as  defined  by  Webster  makes  it  clear  that  in  Web- 
ster's judgment  when  he  published  his  first  dic- 
tionary in  1806,  an  arbitrator's  function  was  to 
judge,  while  that  of  a  mediator  was  to  adjust  a 
dispute.  He  does  not  say  one  word  to  suggest  that 
arbitration  means  a  compromise  even  in  a  remote 
degree. 

In  the  1 84 1  edition  of  Webster,  a  great  deal  more 
is  said  about  both  groups  of  words.  In  speaking  of 
an  arbiter  or  arbitrator  and  of  arbitration,  except 
that  twice  he  says  that  an  arbiter  or  arbitrator  has 
the  power  of  judging  or  deciding  "without  control," 
Webster  still  describes  an  arbiter  or  arbitrator  as  a 
judge  chosen  for  a  certain  specific  case,  in  other 
words  a  judge  chosen  ad  hoc.  For  to  Arbitrate  he 
says,  in  1841,  means  "to  decide;  to  determine; 
to  judge  of."  Mediation  and  Mediator  and  their 
kindred  words,  he  defines  as  synonymous  with  recon- 
ciliation or  adjustment. 


While  Webster  does  not  support  as  clearly  as  some 
of  the  earlier  English  lexicographers  do  the  judicial 
character  of  an  arbitrator  and  of  arbitration,  Worces- 
ter, the  other  great  American  lexicographer,  emphat- 
ically does.     In  his  edition  of  1846*  Worcester  says: 

"Arbiter,  n.  (L.)  One  appointed  to  decide  a  point 
in  dispute,  an  arbitrator,  a  judge. 

"Arbiter,  v.  a.  To  judge. 

"Arbitrate,  v.  a.  (i.  arbitrated;  pp.  arbitrating, 
arbitrated.)    To  decide;  to  judge  of. 

"Arbitrate,  v.  n.     To  give  judgment.     South. 

"Arbitration,  n.  Act  of  Arbitrating.  (Law.) 
The  investigation  and  determination  of  a  cause  by 
an  unofficial  person,  or  by  persons  mutually  chosen 
by  the  contending  parties;   arbitrament. 

"Arbitration,  Bond.  n.  (Law.)  A  solemn  obliga- 
tion to  submit  to  an  award.     Blackstone. 

"Arbitrator,  n.  An  umpire;  a  judge.  (Law.) 
A  person  chosen  by  parties  at  variance  to  determine 
a  matter  in  dispute. " 

"Mediate,  v.  n.  (medius,  L.)  (i.  mediated;  pp. 
mediating,  mediated.)  To  interpose,  as  a  common 
friend,  between  two  parties,  to  intercede;  to  be 
between  two. 

*  Joseph  E.  Worcester,  Dictionary  of  the  English  Language,  Boston, 
1846. 


zo 

"Mediate,  a.  {midiat,  Fr.)  Intervening;  middle; 
be  between  two  extremes. 

"Mediation,  n.  (Fr.)  The  act  of  mediating;  inter- 
position, intervention,  agency  interposed;  inter- 
cession. 

"Mediator,  n.  {mediator,  L.;  mHiateuTf  Fr.) 
One  who  mediates;  an  intercessor;  one  of  the  char- 
acters of  our  blessed  Saviour. " 
,  In  the  above  definition  of  those  two  groups  of 
words,  Worcester  says  of  an  arbiter  that  he  is  "a 
judge,"  and  to  arbitrate  is  "to  decide;  to  judge  of," 
while  an  arbitrator  he  maintains  is  "a  judge."  In 
that  group  he  says  nothing  of  reconciliation  or  any- 
thing else  that  suggests  in  the  remotest  degree  com- 
promise. But  in  the  group  of  words  relating  to 
mediation,  he  does  distinctly  maintain  that  they 
mean  reconciliation.  A  comparison  of  the  two 
groups  of  words  makes  it  still  more  clear  that  in 
Worcester's  estimation  an  arbitrator  was  a  judge 
chosen  for  the  occasion. 

.  If  one  turns  from  these  two  renowned  American 
lexicographers  to  the  Law  Dictionary  of  John 
Bouvier,  one  finds  that^n  his  second  edition  of  1843,^ 
he  maintains  that  an  arbitrator  is  a  judge. 

^John  Bouvier,  A  Law  Dictionary ,  second  edition,  Philadelphia, 
1843. 


XI 

Bouvier  says :       " 

"Arbitrator: — ^A  private  extraordinary  judge 
chosen  by  the  parties  who  have  a  matter  in 
dispute,  invested  with  power  to  decide  the  same. 
Arbitrators  are  so  called  because  they  have  gen- 
erally an  arbitrary  power,  there  being  in  common 
no  appeal  from  their  sentences,  which  are  called 
awards." 

When  he  defines  mediation,  however,  he  says  that 
it  means  compromise. 

"Mediation,  is  the  act  of  some  mutual  friend  of 
two  contending  parties,  who  brings  them  to  agree, 
compromise  or  settle  their  disputes." 

Thus  in  defining  these  two  words  Bouvier 
sharply  defines  the  difference  between  them,  to  wit, 
that  an  arbitrator  is  to  judge,  while  a  mediator  is 
to  bring  about  an  agreement  by  means  of  a  com- 
promise. 

In  the  edition  of  1894  of  this  same  work,^  there  is 
this  definition: 

"Arbitrator.  In  Practice.  A  private  extraordi- 
nary judge,  to  whose  decision  matters  in  controversy 
are  referred  by  consent  of  the  parties." 

In  the  above  definition  the  judicial  character  of 
an  arbitrator  is  distinctly  maintained. 

•John  Bouvier,  A  Law  Dictionary,  Philadelphia,  1894. 


12 

In  the  edition  of  1914/  edited  by  Francis  Rawle, 
we  find : 

"Arbiter:  A  person  bound  to  decide  according  to 
the  rules  of  law  and  equity,  as  distinguished  from  an 
arbitrator,  who  may  proceed  wholly  at  his  own  dis- 
cretion, so  that  it  be  according  to  the  judgment  of  a 
sound  man. " 

Then  the  following  illuminating  statement  is  im- 
mediately made : 

"This  distinction  between  arbiters  and  arbitrators 
is  not  observed  in  modem  law. " 

Continuing  to  define  the  word,  arbiter,  Bouvier's 
1914  edition  says: 

"One  appointed  by  the  Roman  praetor  to  decide 
by  the  equity  of  the  case,  as  distinguished  from  the 
judex y  who  followed  the  law." 

"One  chosen  by  the  parties  to  decide  the  dispute; 
an  arbitrator." 

In  this  last  edition  of  Bouvier  nothing  is  said 
about  an  arbitrator  being  a  reconciler. 

After  this  review  of  some  of  the  leading  authori- 
ties in  the  meaning  of  words  in  English,  it  is  evident 
that  the  words  arbitrator  and  arbitration  when  used 

^John  Bouvier,  Law  Dictionary  and  Concise  Encyclopedia,  third 
revision,  eighth  edition,  edited  by  Francis  Rawle;  Kansas  City  and 
St.  Pavil,  1 914. 


13 

as  terms  of  Municipal  Law  in  the  past  meant  some- 
thing different  from  the  boards  of  arbitration  which, 
constituted  to-day  under  Municipal  Law  to  decide 
between  corporations  and  their  employees,  often 
agree  to  recognize  most  of  the  demands  of  the  latter 
regardless  of  any  justice  or  equity  applicable  to  the 
controversy.  So  that  in  the  light  of  the  masters 
of  the  meaning  of  English  words,  it  is  evident  that 
the  words  arbitrator  and  arbitration  as  often  used 
to-day  in  practice  in  our  municipal  relations  have  so 
largely  changed  their  meanings  of  a  half  century 
and  more  since,  that  in  municipal  affairs  to-day  an 
arbitrator  has  in  many  instances  almost  entirely 
lost  the  judicial  character  that  was  designated  by 
the  same  word  in  the  middle  of  the  last  century 
and  before  that  time.  Nevertheless,  the  meaning 
attaching  often  to-day  in  Municipal  Law  to  the 
words  arbitrator  and  arbitration  does  not  alter 
the  fact  that  according  to  the  best  English  and 
American  lexicographers,  those  words  in  the  past 
did  mean  that  an  arbitrator  was  a  temporary 
judge  and  not  a  reconciler,  and  that  when  an 
arbitrator  was  appointed  to  hear  a  cause  of  differ- 
ence between  two  parties,  he  was  to  decide  the  case 
as  a  judge  and  not  to  try  to  arrange  it  by  a 
compromise. 


14 

All  these  lexicographers,  however,  when  they  de- 
fined the  words  arbiter,  arbitrator,  arbitration  and 
kindred  words  did  not  have  in  mind  specifically  the 
Law  between  Nations.  Consequently,  to  find  more 
authoritively  the  meaning  of  those  words  as  terms  of 
the  Law  between  Nations,  it  will  be  necessary  next 
to  examine  what  some  of  the  leading  publicists  have 
understood  by  the  word  arbitration  and  kindred 
words  when  used  as  terms  of  International  Law.  The 
value  of  the  opinions  of  well  known  publicists  as  to 
what  is  the  Law  between  Nations  has  been  attested 
by  eminent  judges  sitting  in  the  highest  coiuts  in 
the  world.  Thus  Sir  William  Scott,  afterwards  Lord 
Stowell,  sitting  in  1799  in  the  High  Court  of 
Admiralty  of  England  upon  the  case  of  the  Maria,^ 
relied  on  the  Swiss  publicist,  Vattel,  "not  as  a  lawyer 
merely  delivering  an  opinion,  but  as  a  witness  assert- 
ing the  fact — ^the  fact  that  such  is  the  existing 
practice  of  modem  Eiu*ope. "  And  in  1900  in  the 
case  of  the  Paquete  Habana,^  Justice  Gray  of  the 
United  States  Supreme  Court  said  of  the  Law  be- 
tween Nations  and  treatises  on  that  Law: 

"International  Law  is  part  of  our  Law,  and  must 
be  ascertained  and  administered  by  the  courts  of 

*  (1799)  I  Christopher  Robinson,  pages  340,  *364. 

*  (1900)  17s  United  States  Supreme  Court  Reports  677,  700. 


15 

justice  of  appropriate  jurisdiction,  as  often  as  ques- 
tions of  right  depending  upon  it  are  duly  presented 
for  their  determination.  For  this  piupose,  where 
there  is  no  treaty,  and  no  controUing  executive  or 
legislative  act  or  judicial  decisions,  resort  must  be 
had  to  the  customs  and  usages  of  civilized  nations; 
and,  as  evidence  of  these,  to  the  works  of  jurists  and 
commentators,  who  by  years  of  labor,  research  and 
experience,  have  made  themselves  peculiarly  well 
acquainted  with  the  subjects  of  which  they  treat. 
Such  works  are  resorted  to  by  judicial  tribunals,  not 
for  the  speculations  of  their  authors  concerning  what 
the  Law  ought  to  be,  but  for  trustworthy  evidence 
of  what  the  Law  really  is. " 

Among  such  publicists  and  jiuists,  first  let  us  turn 
to  Baron  Puifendorf *s  treatise,  Of  the  Law  of  Nature 
and  Nations, ^^  originally  published  in  1672.  In  dis- 
cussing the  means  other  than  war  of  settHng  the 
differences  that  arise,  he  refers  to  arbitration,  after 
other  modes  of  settlement  have  failed,  in  these  words: 
"The  only  thing  they  [the  disputants]  can  do,  is  to 
pitch  upon  an  Arbitrator ^  and  each  bind  himself  to 
stand  to  his  Award. " 

Speaking  of  the  qualifications  necessary  for  an 

*°  Samuel  Pufifendorf,  Of  the  Law  of  Nature  and  Nations,  Oxford 
17x0. 


i6 

impartial  arbitrator,  Puffendorf  says  that  no '  one 
must  be  chosen  for  such  a  position  who  has  a  reason 
that  one  side  or  the  other  shall  win.  Then  concern- 
ing the  way  the  arbitrator  shall  judge,  Puffendorf 
says:" 

"Now  altho'  the  contending  Parties  enter  into 
Compact  with  the  Arbitrator,  about  taking  upon 
him  his  Office,  (for  as  no  Arbitrage  can  be  exercised 
without  the  Consent  of  the  Parties,  so  no  one  can  be 
forced  to  be  Arbitrator  against  his  own  Consent;) 
yet  it  is  not  from  the  Force  of  that  Compact,  that  he 
becomes  obliged  to  judge  according  to  what  he  thinks 
is  agreeable  to  the  Laws  of  Conscience  and  Equity: 
or  they  to  stand  to  his  Award.  For  the  Law  of 
Nature,  which  can  receive  no  Enforcement  from  any 
Compact,  obliges  him  to  judge  according  to  Jus- 
tice; and  they  are  obliged  to  submit,  without  any 
Reserve,  to  his  Determination,  because  otherwise  the 
Design  of  going  to  an  Arbitrator  would  be  frustrated, 
and  there  would  be  no  End  to  such  Appeals, " 

After  discussing  the  question  whether  an  arbitrator 
should  judge  according  to  the  law,  or  whether  he 
should  mitigate  its  severity,  Puffendorf  says:^^ 

^*  S.  Puffendorf,  Of  the  Law  of  Nature  and  Nations,  Oxford,  1710, 
page  435. 

"/rf.,  page  436. 


17 

"If  it  be  doubtftil  under  which  of  these  two 
Qualifications  the  Arbitrator  is  chosen,  he  ought  to 
suppose  himself  tyed  up  to  those  Rtiles,  which  a 
Judge  wotdd  be  obliged  to  follow;  for  it  is  for  want 
of  a  Judge  and  Judicattire  that  he  is  called  in :  And, 
in  a  doubtful  case,  we  ought  to  take  that  side  which 
is  clearest.  Besides,  an  Arbitrator  can't  so  easily 
act  unjustly,  if  he  has  a  limit,  as  if  he  has  an  absolute 
Power  delegated  to  him. "  Then  Puifendorf  makes  a 
reference  to  mediation  and  the  duties  of  a  mediator 
in  these  words :  "Indeed  to  persuade  a  Mitigation  of 
the  Rigour  of  the  Law  is  properly  their  Business  who 
voluntarily,  without  entring  into  any  Engagements, 
interpose,  as  common  Friends,  between  the  contend- 
ing Parties. " 

Then  as  to  the  kind  of  law  that  judges  should  use 
in  judging,  he  says :  "  Now  as  he  that  judges  between 
Fellow-subjects,  judges  according  to  the  Municipal 
Laws  of  that  Place;  so  he  who  judges  between  those 
who  acknowledge  no  common  Municipal  Laws, 
ought  to  judge  according  to  the  Law  of  Nature; 
unless  the  Parties  submit  their  Cause  to  the  positive 
Laws  of  some  particular  State." 

Many  times  Puifendorf  speaks  of  the  "judgment" 
of  an  arbitrator.  He  also  says:  "This  Arbitrators 
have  in  Common  with  Judges,  that,  in  the  Examina- 


i8 

tion  of  Matters  of  Fact,  they  ought  to  shew  them- 
selves equal  to  the  bare  Asservation  of  each  party, 
i.  e.  when  they  contradict  one  another,  to  believe 
neither.  But  when  Deeds,  Argimients  and  unde- 
niable Instruments  can't  be  produced,  they  must 
then  give  Judgment  according  to  the  Testimony  of 
Witnesses."- 

In  the  same  chapter  in  which  he  treats  of  arbitra- 
tors and  arbitration,  Puffendorf  also  speaks  of 
mediators  whom  he  differentiates  clearly  from  arbi- 
trators as  follows: 

"But  Mediators,  who  interpose  between  contend- 
ing Nations,  either  preparing  or  actually  engaged  in 
War,  and  endeavotu",  by  their  Authority  and  their 
Arguments  and  Intreaties,  to  bring  them  to  Terms 
of  Accommodation  are  not  properly  Arbitrators.'' 

Thus  in  Puffendorf's  conception,  if  contending 
Nations  appealed  to  an  arbitrator,  that  arbitrator 
was  to  judge  between  them,  while  a  mediator  was  to 
reconcile  them  by  more  or  less  of  a  compromise. 

The  Swiss,  Emerich  de  Vattel,  in  the  second  half 
of  the  eighteenth  century  says:^^ 

"The  mediator  ought  to  observe  an  exact  impar- 
tiality;   he  should  soften  reproaches,  calm  resent- 

*'  Emerich  de  Vattel,  The  Law  of  Nations,  or  Principles  of  the  Law 
of  Nature,  Dublin,  1787,  pages  415-416. 


19 

ments,  and  draw  minds  towards  each  other.  His 
duty  is  to  favor  what  is  right,  and  to  cause  to  be 
restored  what  belongs  to  each;  but  he  ought  not 
scrupulously  to  insist  on  rigorous  justice.  He  is  a 
moderator,  and  not  a  judge:  his  business  is  to  pro- 
cure peace;  and  to  bring  him  who  has  right  on  his 
side,  if  it  be  necessary,  to  relax  something  with  a 
view  to  so  great  a  blessing.  *  *  *  When  sover- 
eigns cannot  agree  about  their  pretensions,  and  yet 
desire  to  maintain,  or  to  restore  peace,  they  some- 
times trust  the  decision  of  their  disputes  to  arbi- 
trators chosen  by  common  agreement.  As  soon  as 
the  compromis  (agreement)  is  concluded,  the  parties 
ought  to  submit  to  the  sentence  of  the  arbitrators; 
they  have  engaged  to  do  this,  and  the  faith  of  treaties 
should  be  regarded. " 

The  German,  J.  B.  Kliiber,  writing  in  the  early 
part  of  the  nineteenth  century,  says:^* 

"If  the  person  who  has  been  chosen  [arbitrator] 
accepts,  he  has  the  right,  after  a  discussion  and  a 
sufficient  examination  of  the  reasons  pro  and  con, 
to  pronounce  the  arbitral  judgment  (laudum)  which 
he  believes  conforms  with  the  principles  of  the  Law 
of  Nations. " 

^*  J.  B.  Kluber,  Droit  des  Gens  Moderne  de  L'Europe:   Paris,  Sec. 
318,  page  457.  . 


20 

That  is  what  Lord  Stowell,  for  instance,  attempted 
to  do  in  the  famous  judgments  which  he  gave  when 
he  sat  in  the  High  Court  of  Admiralty  of  England 
upon  prize  cases.  It  was  his  aim,  he  said,  in  the  case 
of  the  Maria,^^  where  Swedish  vessels  were  involved, 
not  to  forget  that  while  the  seat  of  his  Court  was 
local,  the  Law  between  Nations  which  he  was  to  apply 
in  his  Court  was  world  wide  in  its  application  and  as 
binding  on  one  Nation  as  another.  Nevertheless, 
like  all  municipal  judges  sitting  in  prize  cases,  his 
judgments  in  the  long  run  were  influenced  undoubt- 
edly in  some  degree  by  the  needs  of  his  own  coimtry 
to  successfully  prosecute  the  war  in  which  she  was 
engaged. 

In  our  own  times,  as  a  restdt  of  the  additional 
impetus  given  to  the  development  of  international 
justice  as  a  means  of  avoiding  war  by  the  success- 
ful submission  of  the  Alabama  Claims  for  judgment 
to  the  Geneva  Tribunal,  a  number  of  distinguished 
international  publicists  representing  the  best  learning 
of  many  nations  in  the  Law  between  Nations,  may  be 
mentioned,  who  have  in  one  way  or  another  expressed 
their  understanding  of  what  is  meant  by  arbitration 
as  a  term  of  International  Law. 

Thus   the   Belgian,    Gustave   Rolin-Jaequemyns, 

^^(1799)  I  Christopher  Robinson,  pages  340,  350. 


2t 

the  originator  and  one  of  the  founders,  in  1873, 
of  the  Institut  de  Droit  International,  has  clearly  and 
forcibly  enunciated  his  opinion  on  this  point.  Writ- 
ing in  1 89 1  in  the  Revue  de  Droit  International,  of 
which  he  was  one  of  the  three  founders  as  well  as 
editor-in-chief  for  many  years,  he  discusses  the 
agreement  between  France  and  the  Netherlands  in 
1888,  which  those  two  Nations  modified  two  years 
later,  to  submit  to  the  Emperor  of  Russia  as  arbi- 
trator their  difference  over  the  frontier  line  between 
French  and  Dutch  Guiana.  In  the  convention  as 
amended  in  1890  it  was  provided  that  the  arbitrator 
"in  case  he  did  not  reach,  after  an  examination,  to 
designate  as  a  frontier  one  of  the  two  rivers  mentioned 
in  the  convention  of  1888,  he  was  eventually  author- 
ized, for  an  intermediary  solution,  to  adopt  and 
decide  upon  another  boundary  which  would  pass 
through  the  contested  territory."  This  new  agree- 
ment, whereby  the  arbitrator  was  invested  with 
authority,  in  case  he  could  not  decide  in  favor  of  the 
boundary  claimed  by  one  or  the  other  of  the  two 
Powers,  to  impose  upon  the  two  Nations  a  com- 
promise, was  criticised  severely  in  the  States  General 
of  the  Netherlands,  because  upon  an  arbitration 
demanding  from  the  judge  a  decision  based  upon  the 
evidence  and  the  law,  there  was  grafted  a  mediation. 


22 

After  pointing  out  that  two  States  cotild,  if  they 
wished,  graft  upon  the  powers  of  an  international 
arbitrator  acting  as  a  judge  those  of  a  mediator, 
that  is  of  what  is  known  as  an  aimahle  compositeur ^ 
RoHn-Jaequemyns  went  on  to  say: 

"There  is  an  International  Law.  This  Law  grows 
either  from  conventions,  or  from  general  principles 
accepted  by  civilized  Nations.  The  essential  object 
of  resorting  to  arbitration  between  States  is,  not  to 
create  that  Law,  but  to  cause  to  be  sought  and 
decided  by  a  temporary  judge  volimtarily  chosen — 
owing  to  the  want  of  a  permanent  and  obligatory 
jurisdiction — ^in  what  manner  International  Law  is 
applicable  to  a  given  case,  which  is  the  cause  of  a 
disagreement  between  the  parties.  The  States  which 
accept  arbitration  recognize  by  that  very  thing  (and 
it  is  that  which  gives  to  that  procedure  so  great  a 
value)  that  their  difference  is  susceptible  of  being 
settled  by  the  rules  of  International  Law,  either 
general  or  conventional.  It  is  to  falsify  that  idea  and 
to  compromise  its  application,  to  admit  beforehand 
in  the  agreement  (compromis)  itself,  the  eventuality 
of  a  solution  dictated,  not  by  the  Law,  but  by  an 
arbitrary  appreciation  of  the  conveniences  of  each 
party." 

In  view  of  the  above  expressed  opinion,  especially 


23 

the  last  sentence,  it  is  evident  that  in  the  opinion  of 
the  founder  of  the  Institut  de  Droit  International,  by 
the  terms  International  Courts  of  Arbitration  and  Inter- 
national Arbitrators,  are  meant  International  Courts 
and  International  judges  chosen  to  function  tempo- 
rarily so  as  to  pass  judgment  in  the  light  of  the  Law 
between  Nations  upon  some  designated  case  of  differ- 
ence between  two  or  more  Nations,  just  as  Municipal 
Courts  and  Municipal  judges  give  judgment  in  the 
light  of  Municipal  Law  upon  cases  of  difference 
between  individual  citizens  or  corporations.  There 
is,  however,  this  difference  between  these  two  classes 
of  jurisdiction.  International  Courts  of  Arbitration 
and  International  Arbitrators  are  appointed  ad  hoc 
to  judge  particularly  designated  cases,  while  Munici- 
pal Courts  and  Municipal  judges  are  appointed  with 
a  continuing  power  in  the  exercise  of  a  compulsive 
jurisdiction,  to  judge  all  cases  that  may  be  brought 
before  them.  But  in  both  of  these  classes  of  juris- 
diction, in  the  International  as  well  as  in  the  Munici- 
pal, the  Courts  are  to  decide  according  to  the  Law, 
in  the  one  case  according  to  the  Law  between 
Nations,  in  the  other  according  to  Municipal  Law. 
Three  years  later,  Louis  Renault,  the  chief  expert 
adviser  upon  the  Law  between  Nations  to  the  French 
Foreign  Office,  in  commenting  upon  the  Bering  Sea 


24 

Fur  Seal  case,  expressed  his  conception  of  the  natiire 
of  international  arbitration.^®    He  says: 

"The  normal  mission  of  arbitrators,  whether  they 
are  appointed  by  Governments  or  by  private  in- 
dividuals, is  to  decide  a  difference^  to  solve  a  question 
of  Law  or  fact  concerning  which  the  parties  are  in 
disagreement.  The  arbitrators  must  find,  from  the 
doctiments  produced,  who  is  wrong  or  who  is  right; 
they  pronounce  a  veritable  judgment. " 

Then  commenting  on  the  conclusion  made  public 
on  January  lo,  1 831,  by  the  King  of  the  Netherlands 
as  to  the  Anglo-American  boimdary  which  had  been 
referred  to  him  to  decide  as  arbiter,  Renault  says: 

"It  was  not  truly  a  sentence;  the  arbitrator  had 
not  fulfilled  his  mission  which  was  to  judge  and  he 
had  done  what  was  not  asked  of  him;  in  truth  he 
had  assumed  the  role  of  a  spontaneous  mediator, 
proposing  a  friendly  solution  of  the  difference." 

Next  discussing  a  boimdary  question  between 
Great  Britain  and  Portugal,  in  which  case  the  con- 
tending Nations  agreed  in  case  the  arbiter,  the 
President  of  the  French  Republic,  could  not  decide 
entirely  in  favor  of  the  contention  of  one  or  the  other 

^' Louis  Renault,  Une  nouvelle  mission  donnee  aux  arhitres  dans 
les  litiges  internationaux  a  propos  de  V Arbitrage  de  Behring:  Revue 
Ghierale  de  Droit  International  Public,    Paris,  1894,  pages  44-51. 


25 

Nation,  that  he  should  have  the  right  then  "to  give 
such  decision  which,  in  his  view,  would  offer  an 
equitable  solution  of  the  difficulty,"  Renault,  after 
remarking  that  this  was  not  a  strict  case  of  mediation, 
since  the  sentence  of  the  arbiter  was  to  be  accepted 
by  both  parties,  whatever  it  might  be,^^  went  on  to 
say:^^ 

"Thus  the  two  States,  foreseeing  that  their  differ- 
ence perhaps  could  not  be  settled  by  a  juridical 
decision,  and  wishing  nevertheless  to  settle  it,  gave 
to  the  arbiter  a  special  power  which  went  beyond 
the  ordinary  limits  of  the  competence  of  a  judge." 

Then  again,  after  discussing  the  Bering  Sea  case 
and  the  powers  granted  by  the  two  litigant  Nations 
to  the  International  Court  of  Arbitration  which  sat 
in  1893  at  Paris  in  judgment  on  that  case,  Renault 
says:" 

"Two  persons  may  have  every  reason  to  come  to 
an  agreement  to  form  a  partnership  for  example, 
or  to  make  an  exchange;  if  they  do  not  do  so,  they 
merely  make  use  of  their  natural  liberty,  and  one 
cannot  say  that  there  is  litigation  between  them. 

^^  Protocol  of  September  25,  1872;   de  Clercq,  Recueil  des  traitis 
de  la  France,  V.,  XL,  page  39. 

^®  Revue  Generale  de  Droit  International  Public,  Paris,  1894,  page  45. 
"/rf.,  page  so. 


26 

In  case,  however,  that  they  should  be  anxious  to 
come  to  an  understanding  and  should  appoint  a 
third  party  to  define  the  conditions  which  would 
seem  to  him  equitable  for  an  arrangement,  it  would 
be  wrong  to  call  that  third  party  an  arbitrator, 
since  his  mission  is  in  no  manner  that  of  a  judge." 
And  then  in  a  foot-note  to  the  passage  just  cited, 
the  learned  French  publicist  further  says:  "I  know 
perfectly  that  arbitration  in  industrial  affairs  is 
understood  in  this  sense,  but  it  is  so  used  in  an  inexact 
way." 

These  extracts  from  Renault  make  it  clear  that 
he  considered,  at  the  time  he  wrote,  that  an  inter- 
national arbitrator  is  a  judge  and  not  a  reconciler. 

In  a  letter  printed  in  the  London  Times,  January  6, 
1896,  proposing  a  peaceful  solution  of  the  Anglo- 
Venezuelan  crisis,  John  Westlake,  then  holder  of  the 
Whewell  chair  of  International  Law  in  Cambridge 
University,  wrote: 

"It  is  that  of  arbitration,  with  a  restriction 
presently  to  be  mentioned,  combined  with  mediation. 
An  arbitrator  can  only  pronoimce  a  judgment;  he 
cannot  make  a  recommendation  as  a  mediator  can. 
When  England  and  the  United  States  referred  the 
boimdary  between  Canada  and  Maine  to  the  arbitra- 
tion of  the  King  of  the  Netherlands,  that  Sovereign 


ay 

did  not  adjudicate  on  the  respective  lines  proposed 
by  the  parties,  but  proposed  an  intermediate  one  as 
a  compromise,  which  the  United  States  were  not 
bound  to  accept  and  did  not  accept.  Now  in  the 
present  case  it  is  more  than  probable  that  an  arbi- 
trator would  find  legal  groimds  enough  for  ruling 
out  the  maximum  claims  on  both  sides,  even  if  he 
were  not  prevented  from  entertaining  them  by  the 
restriction  presently  to  be  suggested.  But  it  is  also 
probable  that  for  some  part  of  the  intermediate 
region  he  might  be  unable  to  find  any  legal  grounds 
of  decision,  and  that  all  he  could  do  would  be  to 
propose  a  line  of  his  own.  Then,  if  the  parties  had 
from  the  beginning  accepted  him  in  the  character 
of  mediator  as  well  as  in  that  of  arbitrator,  they  would 
not  indeed  be  bound  to  accept  a  line  which  he  did 
not  declare  to  be  one  of  legal  obligation,  but  his 
proposal,  made  as  it  would  be  after  hearing  all  that 
could  be  said  on  that  branch  of  the  subject,  would 
carry  such  weight  that  no  party  desirous  of  peace 
would  refuse  to  accept  it. " 

Westlake,  in  his  treatise  International  Law,  in 
contrasting  arbitration  with  mediation,  says  of  the 
former  of  these  two  functions:^     "The  essential 

^**John  Westlake,  International  Law,  London  (2nd  ed.),  Part  i, 
page  354. 


28 

point  is  that  the  arbitrators  are  required  to  decide 
the  difference — that  is,  to  pronounce  sentence  on 
the  question  of  right.  To  propose  a  compromise, 
or  to  recommend  what  they  think  best  to  be  done, 
in  the  sense  in  which  best  is  distinguished  from  most 
just,  is  not  within  their  province,  but  is  the  province 
of  a  mediator. " 

Earher  in  the  same  work,  in  commenting  on  the 
general  division  between  the  differences  that  arise 
between  Nations  which  seem  capable  of  being  decided 
by  International  Courts  upon  legal  grounds  and 
those  which  because  of  the  great  political  interests 
involved  for  the  Nations  concerned,  apparently  can- 
not be  so  settled,  Westlake  also  says:^^  "That  dis- 
tinction is  not  eo  nomine  one  of  old  standing  in  the 
theoretical  treatment  of  international  law.  It  has 
been  brought  into  prominence  under  the  nomencla- 
ture of  legal  or  juridical  and  political  by  the  dis- 
cussions and  negotiations  on  arbitration,  which  is 
essentially  a  juridical  proceeding/ *^^ 

From  the  three  above  quoted  passages  it  is  very 
evident  that  Westlake  considered  that  International 
Coiuts  of  Arbitration  have  not  the  right  to  arrange 
the  cases  which  they  are  called  on  to  decide  by  a 

^^  J.  Westlake,  International  Law,  London,  2nd  ed..  Part  I.,  page  305. 
^^  The  italics  have  been  added  by  the  present  writer. 


29 

compromise  arrangement,  that  attribute  being  the 
proper  function  of  mediation.  On  the  contrary, 
judging  from  the  above  quoted  extracts,  Westlake 
evidently  considered  that  international  arbitrators 
and  International  Courts  of  Arbitration  in  passing 
upon  differences  between  Nations  were  to  decide 
upon  legal  grounds. 

The  delegates  of  Russia,  among  them  Fedor  de 
Martens,  to  the  First  Hague  Peace  Conference  in 
1899  addressed  to  the  representatives  of  the  other 
twenty-five  Powers  who  took  part  in  that  gathering 
of  the  Nations,  memoranda  in  which  the  merits  of 
and  the  distinction  between  mediation  and  arbitra- 
tion were  discussed.^^  In  the  first  memorandum,  the 
Russians  pointed  out  that  the  difference  between 
good  offices  and  mediation  was  more  theoretical 
than  real,  and  also  that  "mediation  does  not  impugn 
in  any  way  the  principle  of  the  sovereignty,  liberty 
and  independence"  of  states.  In  a  second  m^Tno- 
randum,  the  Russian  delegates  noticed  the  difference 
between  voluntary  and  obligatory  arbitration,  and 
pointed  out  that  "  it  is  difficult  to  conceive  of  a  differ- 

^^  Blue  Book:  C.  9534  miscellaneovis,  No.  i  (1899).  Correspondence 
respecting  the  Peace  Conference  held  at  The  Hague  in  i8gg.  Pre- 
sented to  both  Houses  of  Parliament  by  Command  of  Her  Majesty, 
Oct.,  1899,  pages  39-45. 


30 

ence  of  a  legal  nature,  arising  within  the  scope  of 
positive  International  Law  which  could  not  as  a  result 
of  an  agreement  between  the  parties,  be  solved  by- 
means  of  optional  International  Arbitration."  Con- 
cerning compulsory  arbitration,  the  Russian  report 
pointed  out  very  wisely  that  it  cannot  be  applied  to 
every  kind  of  disputes.  "There  is  no  government," 
it  says,  "which  would  consent  to  accept  beforehand 
the  obligation  to  submit  to  the  decision  of  the 
Tribunal  of  Arbitration  every  difference  which  might 
arise  in  the  domain  of  international  relations  if  it 
affected  the  national  honor  of  the  State,  its  highest 
interests  and  its  imprescriptible  wealth.  Actually, 
the  reciprocal  rights  and  obligations  of  States  are 
determined,  in  a  notable  measure,  by  the  general 
consensus  of  what  are  called  political  treaties,  which 
are  nothing  else  than  the  temporary  expression  of 
fortuitous  and  transitory  relations  between  the  dif- 
ferent national  forces.  These  treaties  bind  the  free- 
dom of  action  of  the  parties  so  long  as  the  political 
conditions  which  produced  them  remain  without 
change.  When  these  conditions  change,  the  rights 
and  obligations  resulting  from  these  treaties  neces- 
sarily change  also.  As  a  general  proposition,  the 
conflicts  which  arise  over  political  treaties  turn  in 
most  cases,  not  so  much  on  a  difference  in  the  inter- 


5r 

pretation  of  such  and  such  a  rule,  as  on  the  change 
to  be  made  in  the  provisions  of  the  treaty  or  its 
complete  abrogation.  Consequently  the  powers 
which  take  an  active  part  in  the  political  life  of 
Europe,  cannot  submit  the  differences  which  arise 
out  of  the  political  treaties  to  a  Court  of  Arbitration, 
in  the  eyes  of  which  what  is  laid  down  by  treaty  would 
be  as  binding  and  inviolable  as  what  is  laid  down  by 
the  positive  law  is  in  the  eyes  of  a  national  Court  of 
Justice.  "^^ 

Thus  in  the  report  presented  by  the  Russian 
delegates  to  the  representatives  of  the  other  nations 
who  were  parties  to  the  First  Hague  Conference, 
it  is  distinctly  affirmed  that  an  International  Court 
of  Arbitration,  like  "a  national  Court  of  Justice, "  is, 
in  giving  its  judgment,  boimd  by  the  Law,  in  the 
one  case  by  the  Law  between  Nations,  in  the  other 
by  the  Mimicipal  Law  of  the  country  where  the 
National  Court  has  its  seat. 

Last  but  not  least,  the  learned  American  jurist, 
John  Bassett  Moore,  speaking  of  mediation  and 
arbitration,  says:^^  "These  methods  are  often  dis- 
cussed as  if  they  were  practically  the  same,  but  in 

^*  The  italics  have  been  added  by  the  present  writer. 
^*John  Bassett  Moore,    International   Law   Digest,   Washington, 
1906,  Volume  VII.,  page  25. 


32 

reality  they  are  fundamentally  different.  Mediation 
is  an  advisory,  arbitration  a  judicial,  function. 
Mediation  recommends,  arbitration  decides.  While 
nations  might  for  this  reason  accept  mediation  in 
various  cases  in  which  they  might  be  unwilling  or 
reluctant  to  arbitrate,  it  is  also  true  that  they  have 
often  settled  by  arbitration  questions  which  media- 
tion could  not  have  adjusted. 

"It  is,  for  example,  hardly  conceivable  that  the 
question  of  the  Alabama  Claims  could  have  been 
settled  by  mediation.  The  same  thing  may  be  said 
of  many  and  indeed  of  most  of  the  great  number  of 
boundary  disputes  that  have  been  settled  by  arbitra- 
tion. The  importance  of  mediation  as  a  form  of 
amicable  negotiation  should  not  be  minimized. 
*  *  *  Nevertheless,  mediation  is  merely  a  diplo- 
matic function  and  offers  nothing  new. 

"Arbitration,  on  the  contrary,  represents  a  prin- 
ciple as  yet  only  occasionally  acted  upon,  namely, 
the  application  of  law  and  of  judicial  methods  to  the 
determination  of  disputes  between  nations.  Its 
object  is  to  displace  war  between  nations  as  a  means 
of  obtaining  national  redress,  by  the  judgments  of 
international  judicial  tribunals ;'^^  just  as  private  war 
between  individuals,  as  a  means  of  obtaining  personal 
^*  The  italics  have  been  added  by  the  present  writer. 


33 

redress,  has,  in  consequence  of  the  development  of 
law  and  order  in  civilized  states,  been  supplanted  by 
the  processes  of  municipal  courts.'^''  In  discussing  the 
subject  of  arbitration,  we  are  therefore  to  exclude 
from  consideration,  except  as  a  means  to  that  end, 
mediation,  good  offices,  or  other  forms  of  nego- 
tiation." 

It  is  quite  evident  from  the  foregoing  review  of 
some  of  the  leading  dictionaries  as  well  as  the  writ- 
ings of  some  of  the  leading  publicists,  that  the  word 
arbitration  in  Municipal  affairs  has  very  much 
changed  its  meaning  and  departed  from  the  use  of 
the  word  as  a  term  of  International  Law.  And  in 
this  connection  it  will  be  useful  to  notice  how  the 
meaning  of  another  word  has  changed  as  the  years 
have  rolled  by. 

Thus  the  word  State  as  used  in  the  North  American 
Confederation  between  1781  and  1789,  and  since  the 
adoption  of  the  Constitution,  has  changed  its  mean- 
ing. As  applied  to  the  original  thirteen  States  of  the 
Confederation  before  1789,  the  word  State  meant  a 
member  of  the  family  of  Nations,  a  sovereign  State, 
for  originally  the  thirteen  States  constituted  a 
Confederation  composed  of  thirteen  member  States. 
To-day,  however,  the  word  State  as  applied  to  the 

^  The  italics  have  been  added  by  the  present  writer. 


34 

forty-eight  members  of  the  Federal  Union  does  not 
mean  the  same  thing  that  it  did  in  the  times  of  the 
Confederation.  For  neither  Pennsylvania,  nor  New 
York  nor  any  other  of  the  forty-eight  States  compos- 
ing the  United  States  of  America  to-day  is  a  member 
of  the  family  of  Nations,  as  France  is  a  State  and  a 
member  of  the  family  of  Nations.  These  forty-eight 
States  together  form  not  forty-eight  Nations,  but 
only  one  single  Nation.  But  the  change  in  the 
meaning  of  the  word  State  in  the  historic  develop- 
ment and  evolution  by  which  the  original  Confedera- 
tion of  thirteen  States  became  the  one  Nation  of 
to-day  known  as  the  United  States  of  America,  does 
not  alter  the  historic  fact,  that  originally  as  applied 
to  the  thirteen  States  the  word  State  meant  thirteen 
separate  and  distinct  members  of  the  family  of 
Nations,  while  to-day  the  same  word  means  the 
various  units  of  the  North  American  Union,  that  is, 
the  component  parts  of  but  one  single  member  of 
the  family  of  Nations. 


II. 

It  has  been  urged  of  late,  that  an  International 
Arbitrator  is  not  bound  by  the  Law,  as  a  Judge, 
sitting  in  a  regularly  constituted  Court,  is  bound  by 


35 

the  Law.  In  other  words,  that  an  International 
Arbitrator  can  exercise,  in  reaching  his  opinion  in  the 
case  submitted  to  him  for  a  settlement,  his  own  ideas 
of  what  would  be  a  just  judgment,  and  so  is  likely 
to  try  to  settle  the  case  by  a  compromise^  which 
will  please  in  part  both  sides  to  the  dispute;  while 
on  the  contrary,  a  Judge,  sitting  in  his  Cotirt,  can- 
not allow  his  own  personal  feeHngs  of  justice  to  in- 
fluence his  judgment,  but  must  rigorously  base  his 
opinion  upon  the  Law  applicable  to  the  case  before 
him.  As  a  result  of  the  above  reasoning,  it  is  main- 
tained by  some  writers  and  practitioners  that  an 
International  Arbitrator  tends  to  become  a  reconciler, 
that  is,  a  mediator,  a  compositeur  aimable,  in  con- 
trast with  the  Municipal  Judge,  who  always  gives 
a  judicial  opinion  based  on  legal  reasoning. 

That  the  Judges  of  Municipal  Courts,  even  the 
most  learned  and  distinguished  who  have  sat  in  the 
highest  Tribunals  in  the  world,  never  allow  either 
their  own  ideas  or  consciences  to  influence  them  in 
arriving  at  their  opinions  as  to  what  most  closely  is 
justice   in   each   particular   case,    is,    however,    an 

^  It  is  well  to  remember  that  the  French  word  compromis  does 
not  mean  compromise  but  agreement.  Compromis  is  often  wrongly 
translated  into  English  by  those  who  do  not  know  better  by  the 
word  compromise  instead  of  by  the  word  agreement. 


36 

absurdity  of  statement,  which  even  a  cursory  exami- 
nation of  the  cases  disproves. 

Take,  for  example,  the  rise  and  development  of  the 
rule  of  the  Law  between  Nations  that  the  jurisdiction 
of  the  Courts  of  Nations  with  a  maritime  front  on 
the  open  sea  extends  to  the  distance  of  one  marine 
league,  or  three  miles,  from  low  water.  It  was  during 
an  embassy  sent  by  the  United  Netherlands  to  the 
English  King  James  the  First,  in  1610,  that  the  idea 
of  limiting  the  exclusive  sovereignty  of  a  maritime 
State  to  the  distance  of  a  cannon  shot  from  its  shore 
was  first  publicly  put  forward.  This  development 
was  an  incident  in  the  long  drawn  out  battle  between 
the  English  and  the  Hollanders  over  the  right  to 
fish,  which  the  latter  claimed  to  exercise,  and  did 
exercise,  in  the  sea  between  England  and  the  con- 
tinent. "No  prince,"  the  Dutch  envoys  told  the 
English  representatives,  "can  Challenge  fiu*ther  into 
the  Sea  than  he  can  Command  with  a  Cannon, 
except  Giilfes  within  their  Land  from  one  point  to 
another.  "^^  While  the  idea  of  placing  a  limit  on  the 
exclusive  seaward  jtirisdiction  of  a  State  doubtless 
had  occurred  before,  it  seems  then  for  the  first  time 
to  have  taken  concrete  form  in  the  cannon  shot  limit. 

^  Thomas  Wemyes  Fulton,  The  Sovereignty  of  the  Sea,  Edinbxirgh, 
1911,  page  156. 


37 

Perhaps  it  originated  in  the  fertile  brain  of  Grotius, 
though  he  was  not  a  member  of  the  embassy.  For 
in  a  work  he  wrote  in  1618,  which  was  published  at 
Paris  in  1640,  Grotius  refers  to  this  principle  of  the 
cannon  shot  having  been  urged  on  the  English.^ 
Later  the  idea  that  a  reasonable  limit  should  be 
placed  upon  the  power  of  a  maritime  State  to  con- 
trol the  sea  coast  adjoining  its  coast  line  was  advo- 
cated by  another  Dutch  publicist,  hardly  less 
renowned  than  Grotius,  Cornelius  van  Bynkershoek. 
Then  the  idea  was  slowly  taken  up  with  favor,  with 
varying  distances,  by  various  jurists,  both  publicists 
and  judges.  The  three  mile  limit,  as  the  equivalent 
of  the  cannon  shot  from  shore,  was  first  advanced 
by  a  Government,  apparently,  in  a  note  which 
Thomas  Jefferson,  the  Secretary  of  State  of  the 
United  States  of  America,  wrote  on  November  8, 
1793.  to  M.  Genet,  the  French  envoy .^^  The  three 
mile  limit  next  received  a  great  impetus  from  the 
decisions  of  Sir  William  Scott,  later  Lord  Stowell, 
sitting  in  the  High  Court  of  Admiralty  of  England. 

^  Apologeticus  eorum  qui  HoUandiae  Westfrisiaeque  et  vicinis 
quibusdam  nationibus  ex  legibus  praejuerunt  ante  mtUalionem  quae 
evenit  anno  16 18.  Scriptus  ab  Hugone  Grotio,  I.  C;  Paris,  1640, 
page  383. 

^^  American  State  Papers:  Foreign  Relations,  Washington,  1832, 
Volume  I.,  page  183. 


38 

By  his  judgments  in  the  two  cases  of  the  Twee 
Gehroeders^^  and  the  case  of  the  Anna,^^  he  gave  the 
judicial  sanction  of  the  greatest  maritime  power 
of  the  world  to  the  three  mile  limit  of  the  territorial 
sea,  and  introduced  that  limit  into  English  Law. 
In  the  first  Twee  Gehroeders  case,  that  vessel  was 
taken  on  August  14,  1799,  on  a  voyage  from  Emden 
to  Amsterdam,  which  latter  place  was  under 
blockade.  She  was  captured  on  the  Groningen  Wat, 
near  the  coast  of  East  Friesland.  The  Prussian 
Government  suggested  that  the  vessel  was  captured 
within  the  protection  of  Prussian  territory.  In  con- 
sidering the  extent  of  the  Prussian  jurisdiction  over 
the  sea  adjoining  its  coast,  Sir  William  Scott  said, 
in  1800:^^ 

"She  was  lying  in  the  Eastern  branch  of  the  Eems, 
within  what  may  I  think  be  considered  as  a  distance 
of  three  miles,  at  most,  from  East  Frieslands;  an 
exact  measurement  cannot  easily  be  obtained;  but 
in  a  case  of  this  nattu*e,  in  which  the  Court  would 
not  willingly  act  with  an  unfavorable  minuteness 

^^  Twee  Gehroeders,  Alberts  master  (1800)  3  Christopher  Robinson, 
page  162,  and  Twee  Gehroeders,  Northolt  master  (1801)  id.,  page  336. 

^^The  Anna  (1805)  5  Christopher  Robinson  373. 

**  Twee  Gehroeders,  Alberts  master  (1800)  3  Christopher  Robinson 
162,  at  page  163. 


39 

towards  a  neutral  State,  it  will  be  disposed  to  cal- 
culate the  distance  very  liberally;  and  more  espec- 
ially, as  the  spot  in  question  is  a  sand  covered  with 
water  only  on  the  flow  of  the  tide,  but  immediately 
connected  with  the  land  of  East  Friesland,  and 
when  dry,  may  be  considered  as  making  part  of  it. 
I  am  of  opinion,  that  the  ship  was  lying  within 
those  limits,  in  which  all  direct  hostile  operations 
are  by  the  Law  of  Nations  forbidden  to  be  exer- 
cised." 

The  second  Twee  Gebroeders  case,  decided  in  1801, 
arose  on  the  capture  of  a  number  of  vessels  bound 
from  Hamburg  to  Amsterdam,  which  latter  port 
was  under  blockade.  In  the  decision,  Sir  William 
Scott  held:^  "  In  the  sea,  out  of  the  reach  of  cannon 
shot,  universal  use  is  presumed." 

In  the  case  of  the  Anna,  captured  at  the  mouth  of 
the  Mississippi  River,  and  decided  in  1805,  when 
the  same  learned  authority  held  that  the  territorial 
sea  should  be  measured,  not  from  the  mainland,  but 
from  some  low  lying  islands  or  mudbanks  at  the 
mouth  of  the  river,  Sir  William  Scott  cited  one  of  the 
famous  maxims  of  Bynkershoek  and  translated  it 
into  three  miles  from  the  shore.    He  said:^^ 

^^  3  Christopher  Robinson  336,  at  page  339. 
^*  5  Christopher  Robinson  373,  at  page  3850. 


40 

"We  all  know  that  the  rule  of  law  on  this  subject 
is  '  terrae  dominium  finitur,  ubi  finitur  armorum  vis, ' 
and  since  the  introduction  of  fire-arms,  that  distance 
has  usually  been  recognized  to  be  about  three  miles 
from  the  shore. " 

When  Sir  William  Scott  gave  those  decisions  there 
was  no  fixed  and  hard  rule  of  the  Law  between  Nations 
that  obliged  him  to  decide  as  he  did.  On  the  contrary, 
he  exercised  his  own  ideas,  arriving  at  his  decisions 
of  what  wotild  be  most  just  in  these  cases.  In  giving 
these  three  judgments  he  was  not  governed  by  a  rule 
of  the  Law  between  Nations  recognized  by  all  Nations, 
but,  on  the  contrary,  he  gave  the  English  interpreta- 
tion on  that  point,  and  so  helped  to  develop  the  Law 
between  Nations.  The  three  mile  limit  came  to  be 
recognized  in  the  larger  part  of  the  world  more  and 
more  as  the  extent  of  the  territorial  sea.  There  were 
exceptions  to  it  a  century  ago,  as  there  are  excep- 
tions to  it  to-day.  But  by  the  year  1876  it  had  gained 
the  support  of  the  great  majority  of  publicists,  and 
the  support  of  many  governments  through  the  acts 
of  their  officials  in  one  way  or  another,  including  that 
of  England  as  expressed  in  the  judgments  of  Lord 
Stowell  in  her  High  Court  of  Admiralty.  Then  in 
the  year  1876  occurred  the  case  of  the  Queen  v.  Keyn, 
better  known  as  the  case  of  the  Franconia.    That  case 


41 

turned  on  whether  the  jurisdiction  of  the  English 
Courts  extended  over  the  territorial  sea.  Briefly, 
that  case  was  as  follows:  The  Franconia,  a  German 
vessel  bound  from  Hamburg  to  St.  Thomas,  sank, 
less  than  three  miles  from  the  British  coast,  near 
Dover,  the  Strathclyde,  a  British  vessel,  killing  as  a 
result  a  woman,  a  British  subject,  who  was  on  board 
of  the  British  vessel.  The  crucial  question  in  the 
case  when  it  came  up  on  appeal  from  the  Central 
Criminal  Court,  was  whether  that  Court  had  juris- 
diction to  try  Keyn,  a  foreigner,  who  was  the  captain 
of  the  Franconia.  By  a  majority  of  one,  seven  judges 
against  six,  the  Court  of  Exchequer  Division 
reversed  the  lower  court,  and  held  that  the  prisoner, 
a  foreigner  on  a  foreign  ship  within  the  marine  belt, 
was  not  amenable  to  the  Law  of  England,  but  only 
to  that  of  his  own  coimtry.  The  minority  judges 
practically  agreed  that — as  shown  by  the  custom 
and  usages  of  Nations  and  proclaimed  by  the  writ- 
ings of  the  publicists — the  rule  of  the  Law  between 
Nations,  by  which  the  sovereignty  of  Nations  having 
a  sea  coast  was  extended  seaward  over  the  marine 
belt  known  as  territorial  waters,  had  extended  the 
sovereignty  of  England  over  the  territorial  sea 
adjoining  her  coast,  and  so  had  placed  the  marine 
belt  under  the  jurisdiction  of  her  Coiuts.    That  view 


4^ 

was  well  stated  by  Chief  Justice  Coleridge,  who  said 
in  part:^^ 

"Now  my  brothers  Brett  and  Lindley  have  shown 
that  by  a  consensus  of  writers,  without  one  single 
authority  to  the  contrary,  some  portion  of  the  coast 
waters  of  a  country  is  considered  for  some  purposes 
to  belong  to  the  country  the  coasts  of  which  they 
wash.  I  concur  in  thinking  that  the  discrepancies 
to  be  found  in  these  writers  as  to  the  precise  extent 
of  the  coast  waters  which  belong  to  a  country 
(discrepancies,  after  all,  not  serious  since  the  time 
at  least  of  Grotius)  are  not  material  in  this  question; 
because  they  all  agree  in  the  principle  that  the  waters, 
to  some  point  beyond  low-water  mark,  belong  to  the 
respective  countries,  on  grounds  of  sense  if  not  of 
necessity,  belong  to  them  as  territory  or  sovereignty, 
in  property,  exclusively,  so  that  the  authority  of 
France  or  Spain,  of  Holland  or  England,  is  the  only 
authority  recognized  over  the  coast  waters  which 
adjoin  these  countries.  This  is  established  as  solidly 
as,  by  the  nature  of  the  case,  any  proposition  of  inter- 
national law  can  be.  *  *  *  The  law  of  nations 
is  that  collection  of  usages  which  civilized  states  have 
agreed  to  observe  in  their  dealings  with  one  another. 

'^  The  Queen  v.  Keyn  (1876)  Law  Reports,  2  Exchequer  Division  63, 
at  page  153. 


43 

What  these  usages  are,  whether  a  particular  one  has 
or  has  not  been  agreed  to,  must  be  matter  of  evidence. 
Treaties  and  acts  of  state  are  but  evidence  of  the 
agreement  of  nations,  and  do  not  in  this  country 
at  least  per  se  bind  the  tribunals.  Neither,  certainly, 
does  a  consensus  of  jurists ;  but  it  is  evidence  of  the 
agreement  of  nations  on  international  points;  and 
on  such  points,  when  they  arise,  the  English  Courts 
give  effect,  as  part  of  English  Law,  to  such  agree- 
ment." 

The  majority  judges,  however,  reversed  the  lower 
Court,  and  held  that  a  rule  of  the  Law  between 
Nations,  no  matter  how  many  learned  jiuists  agreed 
in  proclaiming  it  a  rule  of  that  Law,  nor  no  matter 
how  many  other  Nations  might  agree  among  them- 
selves that  such  a  rule  was  a  part  of  the  Law 
between  Nations,  was  not  binding  upon  British 
Courts  imtil  the  British  Parliament  had  enacted  it 
as  a  rule  of  Law.  While  the  majority  of  judges 
were  not  altogether  unanimous,  most  of  them 
agreed  with  the  view  expressed  by  Lord  Chief 
Justice  Cockbum,  that  the  extent  of  the  realm  of 
England  is  a  question  of  English  and  not  Inter- 
national Law. 

Lord  Chief  Justice  Cockbum  said:^ 

'^  The  Queen  v.  Keyn  (1876)  Law  Reports,  2  Exchequer  Division  63, 
at  page  202. 


44 

"Can  a  portion  of  that  which  was  before  high  sea 
have  been  converted  into  British  territory  without 
any  action  on  the  part  of  the  British  Government 
or  legislature — by  the  mere  assertions  of  writers 
on  public  law — or  even  by  the  assent  of  other 
nations? 

"And  when  in  support  of  this  position,  or  of  the 
theory  of  the  three  mile  zone  in  general,  the  state- 
ments of  the  writers  on  international  law  are  relied 
on,  the  question  may  well  be  asked,  upon  what 
authority  are  these  statements  founded?  When  and 
in  what  manner  have  the  nations,  who  are  to  be 
affected  by  such  a  rule  as  these  writers,  following  one 
another,  have  laid  down,  signified  their  assent  to  it? 
To  say  nothing  of  the  difficulty  which  might  be  found 
in  saying  to  which  of  these  conflicting  opinions  such 
assent  had  been  given." 

Further  on  in  his  opinion  Lord  Cockbum  said  that 
writers  on  the  Law  between  Nations,  "however 
valuable  their  labours  may  be  in  elucidating  and 
ascertaining  the  principles  and  rules  of  Law,  cannot 
make  the  Law."  Even  the  unanimous  assent  of 
the  Nations  that  the  three  mile  zone  of  so  called 
territorial  waters  around  Great  Britain  was  under 
British  jurisdiction,  he  maintained,  would  not  jus- 
tify British  Tribunals  in  recognizing,  "without  an 


45 

Act  of  Parliament,  what  would  practically  amount 
to  a  new  law." 

Thus  thirteen  British  judges  sitting  together 
on  a  case,  after  weighing  the  facts,  the  opinions  of 
jurists  and  publicists  and  the  acts  of  other  Nations, 
were  unable  to  agree  and  divided  almost  equally 
upon  the  question  whether  a  rule  of  the  Law 
between  Nations  could  become  grafted  upon  the 
Law  of  England  through  the  long  continued  cus- 
toms and  acts  of  many  Nations  as  evinced  by 
treaties  and  other  diplomatic  acts,  and  the  writ- 
ings of  the  publicists;  or  whether  it  required  an 
Act  of  Parliament  to  make  a  rule  of  the  Law 
between  Nations  binding  on  British  Courts.  The 
decision  destroyed  the  marine  belt  so  far  as  the 
jurisdiction  of  British  Tribunals  was  concerned, 
and  the  Law  as  proclaimed  by  the  decision  of 
the  Court  had  to  be  changed  to  meet  the  require- 
ments of  the  future  obligations  of  Great  Britain 
as  a  member  of  the  family  of  Nations,  by  the 
Territorial  Waters  Jurisdiction  Act  of  1878.  Thus 
in  that  important  case  thirteen  judges,  when 
called  upon  to  pass  upon  a  case  for  which  no  exact 
precedent  could  be  found  among  English  decisions, 
had  to  use,  each  individually,  in  making  up  their 
minds   as   to   whether   the   jurisdiction   of   British 


46 

Courts  extended  over  the  marine  belt  of  International 
Law,  their  own  best  judgments.  As  a  result,  far 
from  agreeing,  they  divided  into  two  almost  evenly- 
balanced  groups,  and  neither  of  these  two  groups 
was  altogether  unanimous  in  the  processes  by  which 
they  arrived  at  their  conclusions.  This  is  a  splendid 
example  showing  how  judges  on  the  Bench  not  only 
do  exercise  their  own  individual  ideas  in  arriving  at 
their  opinions,  but  also  on  many  occasions  are 
absolutely  forced  by  the  exigencies  of  the  case  before 
them  to  call  upon  and  sometimes  even  to  rely  upon 
their  own  consciences  in  deciding  what  will  be  a  just 
decision. 

Take  another  case,  one  that  was  appealed  to  and 
heard  by  the  most  notable  Municipal  Tribunal  in 
the  world,  the  Supreme  Court  of  the  United  States, 
the  case  known  imder  the  name  of  the  Paquete 
Habana.^^ 

At  the  beginning  of  the  war  in  1898  between  the 
United  States  and  Spain,  two  Spanish  fishing  vessels, 
the  Paquete  Habana  and  the  Lola,  were  taken  by 
the  American  blockading  squadron  off  the  coast  of 
Cuba  and  condemned  by  a  Federal  District  Court  as 
prizes  of  war.  The  case  was  appealed  to  the  Federal 
Supreme  Court.     The  nine  members  of  that  Court 

**  (1900)  17s  United  States  Supreme  Court  Reports  677. 


47 

divided  into  two  groups,  of  six  to  three.  The 
majority,  Mr.  Justice  Gray  delivering  the  opinion 
of  the  Court,  held,  after  a  careful  and  exhaustive 
review  of  the  works  of  the  publicists  and  the  decisions 
of  the  Supreme  Court  and  other  Tribimals,  that 
through  custom  a  rule  of  International  Law  had 
grown  up  exempting  from  capture  in  times  of  war 
the  fishing  vessels  of  belligerents  who  were  merely 
pursuing  their  calling.  The  exemption  does  not 
hold  good,  Justice  Gray  said,  if  the  fishing  vessels 
engage  in  hostilities  in  any  way,  nor  does  it  apply  to 
fish  taken  in  the  deep  sea  so  far  from  land  that  the 
fish  cannot  be  brought  to  market  fresh,  but  must  be 
salted  or  otherwise  cured.  President  McKinley, 
in  his  proclamation  of  April  26,  1898,  made  no 
specific  mention  of  fishing  vessels.  "But  the  proc- 
lamation clearly  manifests,"  Justice  Gray  says,*" 
"the  general  policy  of  the  Government  to  conduct 
the  war  in  accordance  with  the  principles  of  inter- 
national law  sanctioned  by  the  recent  practice  of 
nations," 

Chief  Justice  Fuller,  Justices  Harlan  and  McKenna 
concurring  with  him,  gave  the  dissenting  opinion  of 
the  minority  of  three  judges.  He  did  not  agree  that 
there  was  any  such  established  rule  of  the   Law 

*°  175  United  States  Supreme  Court  Reports,  page  712. 


48 

between  Nations.  In  his  opinion,  after  referring 
to  the  decision  of  the  District  Court  condemning 
the  two  vessels  and  their  cargoes,  because  the 
lower  Court  was  not,  as  he  quoted  the  opinion  of 
the  lower  Court,*^  "satisfied  that  as  a  matter  of 
law,  without  any  ordinance,  treaty  or  proclamation, 
fishing  vessels  of  this  class  are  exempt  from  seizure," 
the  Chief  Justice  went  on  to  say:^^ 

"This  Court  holds  otherwise,  not  because  such 
exemption  is  to  be  found  in  any  treaty,  legislation, 
proclamation  or  instruction,  granting  it,  but  on  the 
ground  that  the  vessels  were  exempt  by  reason  of  an 
established  rule  of  international  law  applicable  to 
them,  which  it  is  the  duty  of  the  Court  to  enforce. 

"I  am  unable  to  conclude  that  there  is  any  such 
established  international  rule." 

There,  speaking  for  the  minority  of  the  Tribunal, 
the  Chief  Justice  absolutely  disagreed  with  the  judg- 
ment of  the  Court  given  by  Justice  Gray. 

Then  further  in  his  dissenting  opinion,  the  Chief 
Justice  said:*^ 

"In  truth,  the  exemption  of  fishing  craft  is  essen- 

*^  175  United  States  Supreme  Court  Reports,  page  715. 
*^  Ibid,  page  715. 
*^  Ibid,  page  719. 


49 

tially  an  act  of  grace,  and  not  a  matter  of  right,  and 
it  is  extended  or  denied  as  the  exigency  is  beHeved 
to  demand. 

"It  is,"  said  Sir  William  Scott,  "*a  rule  of  comity 
only,  and  not  of  legal  decision.'" 

After  citing  Hall,  Freeman  Snow,  and  other 
authorities,  the  Chief  Justice  continued  :** 

"In  my  judgment,  the  rule  is  that  the  exemption 
from  the  rigors  of  war  is  in  the  control  of  the  execu- 
tive. He  is  bound  by  no  immutable  rule  on  the  sub- 
ject. It  is  for  him  to  apply,  or  to  modify,  or  to  deny 
altogether  such  immunity  as  may  have  been  usually 
extended." 

In  this  case,  the  Court  had  to  decide  whether 
there  had  grown  up  by  custom  through  centuries  of 
practice  a  rule  of  the  Law  between  Nations  exempt- 
ing fishing  vessels  when  peacefully  engaged  in  their 
calling  from  capture  as  prizes  of  war,  or  whether 
there  had  merely  developed  a  rtde  of  courtesy  among 
Nations,  enabling  the  executive  of  each  Power  to 
exempt  from  capture  the  fishing  vessels  of  an  enemy 
country.  And  the  members  of  that  august  Tribunal 
were  not  agreed  in  their  conclusion,  the  majority 
deciding  that  there  had  grown  up  through  long  con- 
tinued custom  and  usage  such  a  rule  of  International 

**  175  United  States  Supreme  Court  Reports,  page  720. 


so 

Law,  while  the  minority  just  as  firmly  held  that 
there  had  not. 

To  take  the  practice  of  a  Municipal  Court  as  an 
example,  let  us  look  at  a  notable  Pennsylvania 
case.  The  Pennsylvania  Supreme  Court  reversed 
its  own  earlier  judgments  in  the  case  of  Sanderson  v. 
The  Pennsylvania  Coal  Company  concerning  the  flow 
of  water  in  the  anthracite  coal  districts  of  Penn- 
sylvania.** Why?  Because,  owing  to  the  develop- 
ment of  coal  as  a  factor  in  the  modem  commercial 
world,  there  was  a  difference  of  opinion  from  the 
first  among  the  judges  composing  the  Court  as  to 
how  the  case  should  be  decided.  It  was  a  case  for 
damages  caused  by  the  water  pimiped  out  of  a  mine 
that  flowed  into  a  stream  which  was  thereby  polluted. 
The  case  was  argued  four  times  before  the  Supreme 
Court  of  the  State  of  Pennsylvania.  Not  a  single 
judge  changed  his  opinion,  but  gradually  as  the 
personnel  of  the  Tribunal  changed,  the  Court 
changed  its  view,  and  so  reversed  itself.  The  final 
decision  of  the  Court  was  practically  based  on  the 

*^  Sanderson  v.  The  Pennsylvania  Coal  Co.  (1878)  86  Pennsylvania 
Supreme  Covirt  401;  Pennsylvania  Coal  Co.  v.  Sanderson  (1880) 
94  Pennsylvania  Supreme  Court  302;  Sanderson  v.  Pennsylvania 
Coal  Co.  (1883)  102  Pennsylvania  Supreme  Court  370;  The  Penn- 
sylvania Coal  Co.  V.  Sanderson  (1886)  113  Pennsylvania  Supreme 
Court  126. 


51 

kernel  of  the  dissenting  opinion  of  Justice  Paxson, 
the  first  time  the  case  came  before  the  Court,  when 
he  said:  "The  plaintiffs  knew  when  they  purchased 
their  property  that  they  were  in  a  mining  region. " 

Thus  in  that  important  case  which  was  taken  four 
times  for  decision  to  the  highest  Tribunal  of  the 
State,  the  members  of  the  Court  from  the  start  were 
unable  to  arrive  at  a  unanimous  decision.  They  per- 
sistently disagreed,  some  deciding  for  one  party  to 
the  case,  and  others  for  the  other  contestant. 

In  addition,  in  considering  the  latitude  allowed  to 
judges  in  exercising  their  own  individual  ideas  and 
conceptions  of  what  would  constitute  justice  in  any 
given  case,  it  is  well  to  remember  that  the  English 
Common  Law,  owing  in  many  instances  to  the 
rigidity  of  its  rules  and  the  inability  in  earlier  times 
to  change  and  amend  it,  caused  the  rise  of  Equity  and 
the  Court  of  Equity,  which  could  afford  relief  in 
cases  where  the  Common  Law  could  not.  And 
to-day  in  many  jurisdictions  the  two  systems  of 
jurisprudence  have  been  consolidated,  the  Courts  in 
some  jurisdictions  sometimes  sitting  as  Courts  of  the 
Common  Law,  sometimes  as  Courts  of  Equity,  while 
in  other  jurisdictions,  as  for  example  in  Pennsylvania, 
the  Courts  sit  as  Tribunals  which  concurrently 
administer  both  the  Common  Law  and  the  Law  of 


52 

Equity  in  arriving  at  their  decisions.  Thus  when 
the  judges  of  the  Common  Law  Courts  were  so  bound 
by  the  Law  that  they  could  not  in  many  cases  exer- 
cise their  personal  common  sense  and  conscience, 
relief  for  such  a  situation  was  sought  by  combining, 
in  varying  decrees  in  different  jurisdictions,  with 
their  functions  as  Common  Law  judges  the  powers 
of  chancellors  of  Equity,  and  so  allowing  to  the 
judges  greater  flexibility  in  arriving  at  their  decisions 
than  could  have  been  possible  had  they  remained 
strictly  Common  Law  judges. 

Further,  it  must  be  remembered  that  the  judges  of 
Municipal  Courts  who  have  acted  as  judges  in  Prize 
Courts,  in  their  interpretation  of  the  Law  between 
Nations  have  leaned  undoubtedly  towards  the  view 
that  favored  in  the  long  run  their  own  country.  For 
instance,  take  the  judgments  of  Lord  Stowell,  when 
he  was  in  great  measure  forming  the  Law  of  the 
Sea, — can  anyone  doubt  that  in  rendering  his  judg- 
ments he  was  influenced  in  some  degree  by  the 
interests  of  England  as  a  belligerent?  So,  too,  the 
Supreme  Court  of  the  United  States  during  the 
Civil  War,  in  the  matter  of  continuous  voyages, 
undoubtedly  leaned  towards  the  point  of  view  that 
favored  the  Union  cause.  And  so  also  with  the 
Tribunals  of  other  Nations.     For  after  all,  judges. 


53 

even  the  most  conscientious  of  them  all,  are  htmian 
beings.  Such  personal  views  are  easier  of  application 
in  the  earlier  and  formative  period  of  the  Law, 
whether  Municipal  or  International,  than  when  the 
Law  has  reached  a  highly  developed  stage.  Never- 
theless, even  when  the  Law  is  highly  developed,  the 
personal  feelings  and  ideas  of  each  judge  as  to  what 
constitutes  justice  in  each  case  coimts  for  something, 
more  or  less  according  to  the  character  of  the  indi- 
vidual judge  and  the  circimistances  of  each  case. 

From  the  three  cases  of  the  Queen  v.  Keyn,  the 
Paquete  Habana  and  Sanderson  v.  The  Pennsylvania 
Coal  Company,  that  have  been  reviewed  above,  it  is 
evident  that  Municipal  judges,  sitting  together  in 
the  same  Municipal  Courts,  frequently  do  not  agree 
as  to  the  proper  judgments  to  be  rendered  in  the 
cases  submitted  to  them  for  decision.  It  may  be 
urged,  however,  in  all  cases  where  the  judges  of  a 
Municipal  Tribunal  disagree  as  to  their  judgments 
upon  a  case  before  them,  that  they  all  of  them  have 
given  a  decision  in  favor  of  one  side  or  the  other, 
and  that  they  do  not  agree  upon  a  compromise  with 
the  view  of  giving  something  to  each  contestant  to  a 
case  so  as  to  reconcile  both  parties  to  the  judgment  of 
the  Court.  In  other  words,  that  in  those  cases  where 
the  judges  of  Municipal  Courts  fail  to  agree  in  their 


54 

opinions  as  to  the  case  before  them,  they  disagree 
upon  legal  grounds,  and  each  judge  or  group  of  judges 
in  giving  a  decision  favorable  to  one  side  or  the  other, 
does  not  seek  to  find  in  his  or  their  judgment  a  happy- 
medium  pleasing  to  both  sides  of  the  case  argued  at 
the  bar. 

Cases,  however,  have  been  tried  in  Municipal 
Tribunals  when  the  judges  of  such  Courts,  just  as 
much  as  the  members  of  some  International  Courts 
of  Arbitration,  have  sought  to  settle  cases  before 
them  upon  the  basis  of  a  compromise  between  the 
contestants  rather  than  by  handing  down  a  decision 
founded  upon  pure  legal  reasoning  which  is  clearly 
cut  in  favor  of  one  side  or  the  other. 

During  the  great  American  Civil  War  of  1 861-1865, 
the  Supreme  Court  of  the  United  States  had  many 
cases  brought  to  its  bar  involving  the  principle  of 
continuous  voyages.  One  of  these  was  the  case  of 
the  Bermuda}^  That  vessel,  before  her  capture, 
had  made  a  voyage  bound  ostensibly  from  London 
to  Bermuda.  Eventually  she  ran  the  blockade, 
maintained  by  the  United  States  of  the  Confederate 
coast,  to  Savannah.  On  that  voyage  she  had  a 
cargo  that  would  have  been  of  great  value  in  any  of 
the  Confederate  ports.     She  returned  successfully 

*•  (1865)  3  Wallace,  United  States  Supreme  Court  Reports,  page  514. 


55 

to  England.  On  her  first  outward  voyage  from 
England,  while  Haigh,  a  British  subject,  was  her 
apparent  owner,  he  had  given  a  power  of  attorney 
to  sell  the  ship  to  two  inhabitants  of  Charleston, 
South  Carolina. 

After  her  return  to  England,  she  received  at  Liver- 
pool preparatory  to  a  second  voyage,  a  cargo  under 
the  direction  of  Eraser,  Trenholm  and  Co.,  a  firm 
having  connections  in  Charleston.  On  her  second 
voyage  the  Bermuda  was  bound  again  ostensibly 
for  Bermuda.  The  vessel  was  captured  by  a  Federal 
cruiser  on  the  high  seas  and  sent  into  Philadelphia. 
After  both  the  ship  and  cargo  had  been  condemned 
by  the  District  Court  as  good  prizes,  the  case  was 
appealed  to  the  Federal  Supreme  Coiut,  where  the 
judgment  of  the  lower  Court  was  affirmed. 

Chief  Justice  Chase  in  giving  the  opinion  of  the 
Court  said:*^ 

"  Now,  what  were  the  marks  by  which  the  convey- 
ance of  contraband  on  the  Bermuda  was  accom- 
panied? First,  we  have  the  character  of  the  contra- 
band articles,  fitted  for  immediate  military  use  in 
battle,  or  for  the  immediate  civil  service  of  the 
rebel  government;  then  the  deceptive  bills  of  lading 
requiring  delivery  at  Bermuda,  when  there  was 
*^  3  Wallace,  United  States  Supreme  Court  Reports,  page  557. 


S6 

either  no  intention  to  deliver  at  Bermuda  at  all,  or 
none  not  subject  to  be  changed  by  enemies  of  the 
United  States ;  then  the  appointment  of  one  of  these 
enemies  as  master,  necessarily  made  with  the  knowl- 
edge and  consent  of  Haigh,  if  he  was  owner;  then  the 
complete  surrender  of  the  vessel  to  the  use  and  con- 
trol of  such  enemies,  without  even  the  pretence  of 
want  of  knowledge,  by  the  alleged  owner,  of  her 
destined  and  actual  employment."  The  Bermuda 
was  justly  liable,  the  Chief  Justice  continued,  to 
condemnation  for  the  carriage  of  contraband  goods 
to  a  belligerent  port  under  circumstances  of  fraud 
and  bad  faith  which  made  the  owner  liable  and 
responsible  "for-  imneutral  participation  in  the 
war."^« 

The  case  of  the  Hart,'^^  tried  soon  after  that 
of  the  Bermuda,  was  very  similar.  The  vessel  had  a 
cargo  of  arms  and  munitions  of  war,  taken  on  board 
chiefly  at  London  under  the  direction  of  Confederate 
agents.  The  nominal  destination  of  the  vessel  and 
cargo  was  Cardenas,  Cuba;  but  the  proofs  of  evi- 
dence were  clear  that  the  real  destination  after 
reaching  Cardenas  was  to  be  a  port  of  the  Con- 
federacy. 

**  (1865)  3  Wallace,  United  States  Supreme  Coxirt  Reports,  page  558. 
^^  Ibid,  page  559. 


57 

Chief  Justice  Chase  said  :^ 

"The  case  in  its  principal  features  resembles  that 
of  the  Bermtida  and  her  cargo ;  they  are,  perhaps, 
even  more  irreconcilable  with  neutral  good  faith. 

"It  is  enough  to  say  that  neutrals  who  place  their 
vessels  under  belligerent  control,  and  engage  them 
in  belligerent  trade,  or  permit  them  to  be  sent  with 
contraband  cargoes  under  cover  of  false  destination 
to  neutral  ports,  while  the  real  destination  is  to 
belligerent  ports,  impress  upon  them  the  character 
of  the  belligerent  in  whose  service  they  are  employed, 
and  cannot  complain  if  they  are  seized  and  con- 
demned as  enemy  property." 

The  lower  Court's  decree  condemning  both  the 
vessel  and  cargo  was  affirmed.^^ 

^  3  Wallace,  United  States  Supreme  Court  Reports,  page  560. 

^*  The  doctrine  of  continuous  voyages  affirmed  in  these  two  cases  of 
the  highest  American  Court  as  a  rule  of  the  Law  between  Nations,  while 
not  accepted  as  sound  by  all  publicists  and  all  nations,  was  later,  during 
the  South  African  Three  Years'  War,  acted  upon  by  Great  Britain  in  the 
case  of  the  German  steamers,  Bundesrath,  Herzog  and  General.  Those 
three  vessels  bound  in  1900  from  neutral  German  ports  to  the  neutral 
Portuguese  port  of  Lorenzo  Marques  on  Delagoa  Bay,  were  seized  by 
cruisers  of  Great  Britain  because  these  neutral  vessels  were  thought  to 
be  carrying  contraband  of  war  destined  for  the  two  Boer  Republics. 
The  German  Government  demanded  their  release  on  the  ground  that 
as  they  were  sailing  between  neutral  ports,  there  could  not  be  said 
-to  be  any  carrying  of  contraband  between  the  neutral  ports.  Great 
Britain  did  not  recognize  the  principle  advanced  by  Germany,  and 


58 

If  the  decisions  in  the  cases  of  the  Bermuda  and 
Hart  are  compared  with  the  judgments  in  the  cases 
of  the  Springbok  and  the  Peterhoff,  also  tried  a  Httle 
later  by  the  Federal  Supreme  Court  of  the  United 
States,  it  becomes  apparent  that  some  decisions  at 
least  of  Municipal  Tribunals  of  the  highest  degree, 
possessing  a  continuing  and  compulsory  jurisdiction, 
may  be  open  to  attack  or  unfavorable  criticism  as 
compromises,  rather  than  judgments  judicial  in 
character,  with  quite  as  much  justice  and  plausibility 
as  many  of  the  decisions  of  International  Courts  of 
Arbitration  appointed  ad  hoc,  which,  possessing 
merely  a  temporary  existence,  do  not  enjoy  a  com- 
pulsory jurisdiction,  but  rely  on  the  previous  agree- 
ment and  willingness  of  the  litigant  Nations  to 
accept  and  loyally  carry  out  the  decisions  handed 
down  by  such  temporary  International  Tribunals. 
To  put  it  in  other  words,  many  of  the  International 
Courts  of  Arbitration  appointed  ad  hoc,  whose 
judgments  have  been  severely  attacked,  often  by 
more  or  less  interested  parties,  as  compromises 
rather  than  judicial  decisions,  were  no  more  guilty 
in  that  respect  than  Municipal  Tribunals  in  many 

asserted  that,  even  though  carried  in  a  neutral  vessel  bound  for  a 
neutral  port,  articles  intended  ultimately  for  the  enemy  were  con- 
traband of  war. 


59 

decisions  which  the  latter  have  handed  down;  and 
in  many  instances  did  render  judicial  decisions  which 
have  been  unjustly  attacked  as  compromises. 

The  Springbok  sailed  from  London,  December  8th, 
1862,  and  was  captured  about  one  hundred  and  fifty 
miles  east  of  Nassau,  a  port  in  one  of  the  British 
West  Indies,  February  3rd,  1863,  when  bound  to  that 
port.®^  Both  ship  and  cargo  were  condemned  by 
the  District  Court,  and  the  case  was  appealed  to  the 
Federal  Supreme  Court. 

The  shipping  articles  engaged  the  crew  not  only 
from  London  to  Nassau,  but  also  from  there,  Chief 
Justice  Chase  said,^^  if  necessary,  to  any  other  West 
Indian,  British  North  America  or  American  port,  and 
finally  to  a  British  port,  "and  it  is  also  true  that  this 
engagement  would  include,  should  the  master  under- 
take it,  a  continuance  of  the  voyage  for  the  convey- 
ance of  the  cargo  from  Nassau  to  a  blockaded  port; 
but  there  is  no  proof  that  there  was  any  engagement 
for  such  continuance  of  the  voyage." 

The  ship's  papers  seemed  to  show,  the  Court 
thought,  no  intention  to  take  the  goods  further  than 
Nassau,   though  the  master  was  uncertain  in  his 

*^The  Springbok  (1866)  5  Wallace,  United  States  Supreme  Court 
Reports,  page  i. 

'^  Id.  page  21. 


6o 

testimony  as  to  the  real  ownership  of  the  cargo. 
The  Court  decided  that  the  ship  was  not  involved 
with  the  contraband  part  of  the  cargo,  but  was  in 
good  faith  carrying  it  to  a  neutral  port,  Nassau, 
so  the  vessel  was  not  condemned  by  the  Court, 
though  the  judgment  of  the  lower  Court  was  affirmed 
as  to  the  cargo. 

On  the  whole  review  of  the  case  it  would  seem 
that  the  Court  was  anxious  not  to  condemn  a  mer- 
chant vessel  of  a  powerful  neutral  State  whose 
government  had  been  none  too  friendly  to  the  Union 
cause;  and,  although  there  was  evidence  that  seemed 
to  show  that  the  Springbok  could  have  been  con- 
tinued for  a  Confederate  port  when  captured  in  the 
region  of  the  port  of  Nassau,  a  port  well  known  to 
be  in  service  as  a  base  for  running  the  blockade,  the 
Court  nevertheless  discharged  the  vessel.  While  in 
the  case  of  the  Springbok  the  suspicion  of  unneutral 
service  on  the  part  of  the  vessel  was  not  overwhelm- 
ing, still  it  distinctly  existed,  and  so  gives  strong 
color  to  the  thought  that  the  decision  of  the  Court 
in  that  case  in  not  condemning  the  vessel  was  a 
desire  to  reach  a  compromise  which  would  be  more 
or  less  pleasing  to  both  Nations. 

The  Peterhoff,  a  British  vessel,  bound  from 
London  to  Matamoras  in  Mexico,  forty  miles  up  the 


6r 

Rio  Grande  and  opposite  Brownsville  in  the  Con- 
federate States,  was  seized  February  25th,  1865, 
by  a  United  States  war  vessel  near  the  island  of 
Saint  Thomas.^  The  cargo,  which  was  miscella- 
neous in  character,  was  in  part  useful  for  military 
purposes.  It  consisted  also  of  iron,  steel,  many  drugs 
and  other  things  which,  owing  to  the  blockade  of 
the  Confederacy  by  the  Federal  Government,  were 
much  needed  in  the  Confederate  States.  When  the 
Peterhoff  was  captured  by  the  United  States  cruiser 
Vanderbilt,  not  only  did  the  captain  of  the  Peterhoff 
refuse  to  go  on  board  the  war  vessel  to  have  his 
papers  examined,  on  the  ground  that,  as  he  was 
carrying  a  British  mail,  all  his  papers  should  be 
examined  on  his  own  ship,  but  also  papers  or  articles 
of  some  sort  were  thrown  overboard  by  his  com- 
mand and  lost.  The  captain  of  the  Peterhoff,  in 
addition,  admitted  in  Court  that  he  had  destroyed 
some  letters,  which  he  swore  were  addressed  to  him 
by  his  wife  and  father,  but  that  no  other  papers 
were  destroyed.  The  cargo  was  shipped  mostly  by 
various  British  subjects,  and  a  portion  of  it  belonged 
to  the  owner  of  the  vessel.    The  New  York  District 

^  The  Peter hof  (1866)  5  Wallace,  United   States  Supreme  Court 
Reports,  page  28. 


62 

Court  condemned  both  the  vessel  and  the  cargo  as 
lawful  prizes  of  war. 

The  Federal  Supreme  Court  decided  that  part  of 
the  cargo  was  contraband,  and  that  so  much  of  the 
rest  of  the  cargo  as  was  not  contraband,  but  belonged 
to  the  owner  of  the  contraband,  must  be  condemned. 
The  Court,  however,  did  not  condemn  the  rest  of  the 
cargo,  nor  the  vessel,  on  the  ground  that  there  was 
no  intention  of  the  vessel's  attempting  to  break  the 
blockade.  In  view  of  the  throwing  into  the  sea  of 
some  papers  or  some  object  from  the  vessel  at  the 
time  the  capture  was  taking  place,  and  the  master's 
admission  in  Court  that  he  had  destroyed  papers 
which  he  alleged  were  merely  letters  from  his  wife 
and  father,  it  would  seem  that  the  Court  was  lenient 
in  its  decision,  preferring  not  to  press  too  hard  on  the 
neutral  owners  either  of  the  vessel  or  of  a  large  part 
of  the  cargo.  A  comparison  of  the  judgment  in  this 
case  with  those  in  the  cases  of  the  Bermuda  and  the 
Hart,  in  view  of  the  strange  doings  of  the  master  of 
the  Peterhoff  in  destroying  papers  on  board  his 
vessel  and  throwing  a  package  into  the  sea  at  the 
time  of  the  capture  of  the  Peterhoff,  strongly  sug- 
gests that  the  judgment  of  the  Court  in  this  case  was 
very  possibly  a  compromise. 

The  Supreme  Court  of  the  United  States  in  both 


63 

the  case  of  the  Springbok  and  that  of  the  Peterhoff, 
while  sustaining  the  lower  Courts  in  their  judgments 
as  to  the  condemnation  of  the  contraband  portion 
of  the  cargo,  had,  nevertheless,  a  good  and  abundant 
reason  to  be  lenient  wherever  it  was  possible  upon  the 
vessels  of  Great  Britain,  a  strong  neutral  nation, 
because  Great  Britain  throughout  the  war  had  often 
shown  that  she  was  jealous  of  the  rise  and  growth  of 
the  United  States.  While  it  cannot  be  affirmed  posi- 
tively that  the  judgments  handed  down  by  the 
Federal  Supreme  Court  in  the  cases  of  the  Springbok 
and  the  Peterhoff  were  compromises,  nevertheless, 
those  two  decisions  are  open  to  criticism  as  com- 
promises rather  than  strictly  judicial  judgments 
with  qtiite  as  much  plausibility  and  accuracy  as  a 
number  of  judgments  given  by  International 
Tribimals  set  up  ad  hoc,  which  have  been  criticised 
by  some  writers  as  being  compromises. 

A  comparison  of  the  decisions  in  the  cases  of  the 
Queen  v.  Keyn  and  the  Paquete  Habana  with  those 
in  the  cases  of  the  Alabama  Claims  and  the  Bering 
Fur  Seal  Fisheries  is  illtiminative  of  the  subject  under 
discussion.  In  many  important  respects  those  two 
pairs  of  cases — ^the  one  pair  tried  before  Municipal, 
the  other  before  International  Tribunals — are  very 
similar. 


64 

In  the  two  former  of  these  four  cases,  the  two  which 
were  argued  before  and  decided  by  two  notable 
Municipal  Tribunals,  the  Court  in  neither  case  was 
unanimous.  The  same  thing  was  true  of  the  latter 
two  cases,  the  two  which  were  tried  and  decided  by 
International  Courts  of  Arbitration.  In  the  Queen 
V.  Keyn  the  Court  divided  seven  judges  to  six,  and  in 
the  Paquete  Habana  six  to  three.  In  the  Alabama 
Claims  case  the  Tribunal  divided  on  some  counts 
four  to  one,  on  others  three  to  two,  and  in  the  Bering 
Fur  Seal  case,  on  the  question  of  the  extent  of  the 
territorial  sea  the  Court  was  six  to  one  in  favor  of  the 
three  mile  limit  and  five  to  two  on  some  other  points 
of  the  case.  In  all  four  of  those  cases  the  judges, 
both  Municipal  and  International,  had  to  rely  in 
part  on  their  own  individual  consciences  and  common 
sense  in  arriving  at  their  decisions.  In  other  words 
they  had  to  decide  something  that  had  never  been 
decided  before.  Another  point  of  similarity  is  to 
be  found  in  the  Queen  v.  Keyn  and  the  Alabama 
Claims  cases.  In  each  of  those  two  cases,  one  tried 
before  a  Municipal,  the  other  before  an  International 
Tribunal,  legislation  was  called  into  play.  As  a 
result  of  the  decision  in  the  Queen  v.  Keyn,  which 
abolished  the  territorial  sea  so  far  as  English  Law  and 
English  Courts  were  concerned.  Parliament  had  to 


65 

come  to  the  rescue  in  the  Territorial  Waters  Jur- 
isdiction Act  of  August  i6,  1878,  to  remedy  the 
resulting  situation  which  placed  Great  Britain  in  a 
way,  as  a  result  of  that  decision,  outside  of  the  pale 
of  International  Law.  By  that  act,  Parliament  not 
only  overruled  the  decision  of  the  Court  in  the 
Queen  v.  Keyn,  but  even  went  so  far  as  to  say  that 
that  decision  was  wrong  in  its  interpretation  of  the 
Law  in  the  past.^  For  the  act  declared  that  Her 
Majesty's  jurisdiction  over  the  open  seas  adjoining 
Her  dominions  not  only  extended  but  also  "has 
always  extended"  over  the  marginal  seas  as  far  as 
was  necessary  for  the  security  of  Her  Majesty's 
dominions.  In  the  Alabama  Claims  case,  legislation 
also  had  to  be  called  into  play,  for  the  agreement 
as  to  the  "Three  Rules"  of  the  Treaty  of  Washington 
was  legislation  by  the  two  interested  Nations  as  to 
that  particular  case.  There  was  this  difference 
between  the  two  cases,  that  in  the  former  the  legis- 
lation was  resorted  to  as  a  result  of  the  decision,  as  a 
means  of  nullifying  it  for  the  future,  as  well  as  declar- 
ing it  wrong  as  to  the  past;  while  in  the  latter  case 
the  legislation  was  a  prerequisite  so  as  to  clarify  the 
Law  of  Neutrality  upon  which  the  American  and  the 

^John  Bassett  Moore,  International    Law   Digest,    Washington, 
1906,  Volvime  I.,  page  714. 


66 

British  Governments  were  not  in  accord,  in  order 
that  the  Alabama  Claims  case  might  be  tried  before 
the  International  Court  that  sat  at  Geneva.  In 
both  cases,  the  one  tried  by  a  Municipal  Court  as 
well  as  the  one  tried  by  an  International  Tribunal, 
legislation  was  necessary. 

As  Professor  John  Bassett  Moore  has  so  well 
said,^  the  legislation  agreed  upon  in  the  Treaty  of 
Washington  by  the  United  States  and  Great  Britain, 
that  is,  the  Three  Rules,  which  were  to  be  applicable 
in  the  Alabama  Claims  case,  did  not  touch  the  judicial 
character  of  the  decision  given  by  the  Geneva 
Tribunal,  but  affected  only  the  question  "whether 
the  award  must  be  accepted  as  an  exposition  of 
contemporaneous  International  Law — just  as  we  may 
have  a  question  whether  the  judgment  of  one  of  our 
Municipal  Courts  in  obedience  to  a  statute  is  to  be 
regarded  as  an  exposition  of  the  Common  Law ;  and 
in  determining  this  we  are  dealing  not  with  the  judi- 
cial or  non-judicial  character  of  the  deliverance  in 
the  remotest  degree,  but  with  the  question  whether 
the  statute  was  declaratory  of  the  Common  Law." 

The  essential  difference  between  International 
Tribunals  of  Arbitration  such  as  the  Geneva  Court 
of  1871-72  and  the  Paris  Court  of  1893  from  Munici- 

^  In  a  letter  of  October  31st,  1914,  to  the  present  writer. 


67 

pal  Tribunals  such  as  the  Supreme  Court  of  the 
United  States  is  that  the  former  are  temporary  in 
their  existence  and  constituted  to  judge  a  particular 
case  or  a  series  of  somewhat  similar  or  analogous 
cases,  while  the  latter  are  continuous  in  their  exist- 
ence, exercise  a  pre-existing  jurisdiction  to  which 
all  individuals  are  subject  nolens  volens,  and  sit  upon 
all  sorts  and  kinds  of  cases  that  may  be  brought  to 
their  bar.  It  may  be,  perhaps,  that  in  time,  out  of 
such  temporary  Courts  as  those  that  sat  and  judged 
at  Geneva  and  Paris  between  the  North  American 
Republic  and  the  British  Empire,  and  the  more 
recently  constituted  Courts  set  up  ad  hoc  at  the 
capital  of  Holland  according  to  the  conventions  of 
The  Hague  Peace  Conferences,  a  Supreme  Court  of 
the  Nations,  always  in  being,  may  be  evolved  to 
judge  legal  cases  arising  between  Nations."  But 
before  an  attempt  is  made  to  establish  such  a 
Tribunal  to  judge  always  between  the  members  of 
the  family  of  Nations,  it  would  seem  wise  that  the 
temporary  individual  Tribunals  set  up  at  The 
Hague  to  judge  each  a  designated  case  or  series  of 
similar  cases  should  be  changed  to  the  end  that 

^^  Thomas  Willing  Balch;  DiffSrends  juridiques  ei  politiques  dans 
les  rapports  des  Nations,  Revue  Ginirale  de  Droit  International  Public, 
Paris,  1914,  page  181. 


68 

the  judges  of  such  temporary  Courts  may  be  strength- 
ened in  the  judicial  habit  to  the  exclusion  of  recon- 
ciling the  political  desires  of  the  contending  Nations. 
To  insure  so  far  as  possible  that  in  the  future  the 
decisions  given  by  the  International  Courts  set  up 
ad  hoc  at  The  Hague  shall  base  their  decisions  upon 
judicial  grounds  and  avoid  even  a  tinge  of  political 
compromise  creeping  in,  three  things  could  be 
resorted  to.  First,  in  the  agreement  or  compromis 
referring  a  case  to  one  of  The  Hague  International 
Courts,  it  could  be  specifically  provided  that  the 
decision,  as  Professor  Lassa  Oppenheim  has  suggested, 
should  be  based  upon  legal  grounds.  Second,  the 
second  Hague  Convention  of  1907  could  be  amended, 
so  that  all  the  judges  in  the  International  Courts 
provided  for  under  The  Hague  Conventions  should 
be  not  only  men  learned  in  the  Law,  but  in  addition 
should  not  be  diplomatists  by  training.  Third,  in 
accordance  with  the  motion  made  at  the  Second 
Hague  Peace  Conference  by  Mr.  Scott  of  the  United 
States  and  supported  by  Professor  de  Martens  of 
Russia,  Doctor  Lammasch  of  Austria,  and  several 
other  delegates,  the  individuals  appointed  by  their 
respective  governments  to  the  panel  from  whom  the 
judges  for  each  of  The  Hague  International  Courts 
should  be  chosen  to  try  a  particular  case,  must  not 


6& 

be  permitted  to  appear  in  any  international  case  as 
advocates  or  agents,  but  only  as  judges.^^ 

In  addition,  it  would  be  well  if  the  publicists  of  the 
world  criticised  favorably  or  adversely,  as  the  facts, 
the  arguments,  and  the  decision  in  each  case  might 
appeal  to  them,  the  judgment  of  each  International 
Court  and  even  of  each  individual  judge  sitting  in 
those  Courts,  and  point  out  when  and  in  how  far 
each  court  or  individual  judge  failed  to  judge  accord- 
ing to  the  Law  and  sought  to  base  his  decision  upon 
a  compromise  so  as  not  to  displease  either  party. 
But  the  criticism  of  an  advocate  who  had  taken 
part  in  a  case  should  always  be  taken  cum  grano 
salts.  In  that  manner,  the  future  fame  of  the 
individual  international  jurists  sitting  in  any  of  The 
Hague  Courts  set  up  ad  hoc  would  rest  in  a  measure 
in  the  hands  of  the  men  who  write  and  comment 
upon  the  Law  between  Nations.  In  that  way  not 
only  a  strong  incentive  for  future  fame  would  be 
available  to  induce  the  judges  of  The  Hague  Inter- 
national Courts  to  judge  according  to  the  Law 
between  Nations,  but  also  their  actual  every  day 

^*  Deuxihme  Conference  Internationale  de  la  Paix:  Actes  et  Documents, 
The  Hague  Impriemrie  Nationale,  1907,  Vol.  II.,  p.  753.  Premise 
Commission,  Premiere  souscommission,  Comite  d'Examen  C.  Huitiime 
seance,  g,  Septembre  1907;  p.  767;  Comite  d'Examen  A.  Dix-septihme 
siance,  pages  587-589. 


70 

standing  as  jurists  would  be  enhanced  or  lowered 
accordingly  as  they  decided  as  international  judges 
or  as  amiable  reconcilers  or  mediators. 

By  thus  amending  the  manner  of  forming  The 
Hague  International  Courts  named  ad  hoc  to  try 
each  a  single  case  or  a  series  of  similar  cases,  the 
judicial  character  of  those  International  Tribunals 
of  Arbitration  would  be  strengthened;  and  they 
could  be  looked  to  for  the  dispensation  of  justice  in 
the  future  between  Nations  as  truly  as  in  the  past 
the  High  Court  of  Admiralty  of  England  in  Lord 
StowelFs  day,  or  the  Supreme  Court  of  the  United 
States  or  the  International  Tribunals  that  sat 
respectively  in  the  Alabama  Claims  and  the  Bering 
Sea  Fur  Seal  Fisheries  cases,  handed  down  judicial 
decisions  based  on  the  principles  of  the  Law  and  the 
ideas  of  justice. 

May  13th,  1915. 
Philadelphia. 


INDEX. 


INDEX. 


PAGB 

Aimable,  compositeur 22,  35,  70 

Alabama  Claims i,  2,  20,  32,  63-66,  70 

Alexander  the  Third 21 

American  Civil  War 52,  54 

Anglo-American  boundary  case 24,  26 

Anglo- Venezuelan  boundary  case 26 

Anna,  the 38,  39 

Arbiter 3-5,  7-9,  12 

Arbitrage 3 

Arbitrament 3,  5,  6 

Arbitrate 5,  6,  8,  9 

Arbitration 5-9,  12,  13,  20,  21,  31,  32 

"Arbitration "  as  a  term  of  International  Law i,  2 

Arbitration,  International i,  24,  26,  30,  33,  34,  70 

Arbitration,  International  Courts  of 23,  25,  27,  29,  30, 

31,  54,  58,  63,  64,  66,  69,  70 

Arbitration,  Municipal i,  2,  33 

Arbitrator 3,  4,5,7,  8,9,  11,  12,  13,   15-21,  24,  26,    28 

Arbitrator,  International 23,  34,  35 

Bering  Sea  Fur  Seal  Fisheries  case i,  2,  23,  25,  63,  64,  70 

Bermuda,  the 54-58 

Bouvier,  John 10-12 

Bundesrath,  the 57 

Bynkershoek,  Cornelius  van 37f  39 

Cannon  shot  limit  of  the  territorial  sea 36,  37,  40 

Chase,  Chief  Justice 55-57 

Cockburn,  Chief  Justice 43,  44 

Coleridge,  Chief  Justice 42 


74 

PAGE 

Continuous  voyages 52,  54,  57,  59 

Courts,  International i,  28 

Courts,  Municipal 2,  23,  33-35,  46,  50,  53,  54,  58,  63,  64,  66 

England 2,  24,  26,  36,  37,  40-42,  52,  67 

English  lexicographers 2 

France 21,  42 

Franco-Dutch  Guiana  frontier  case 21 

Fuller,  Chief  Justice 47-49 

Fulton,  Thomas  Wemyes 36 

Genet,  Monsieur ". 37 

General,  the 57 

Geneva  Tribunal 2,  20,  66,  67 

Gray,  Justice 14,  47,  48 

Great  War i 

Hague  Peace  Conferences,  The 29,  31,  67,  68 

Hall,  William 49 

Harlan,  Justice 47 

Hart,  the 56,  58,  62 

Herzog,  the 57 

High  Court  of  Admiralty  of  England 14,  37,  40,  70 

Institut  dc  Droit  International 21,  23 

International  Law I,  2,  13,  14,  19,  20,  22,  23,  26,  27,  30,  31, 

36,  39-41.  43.  44.  47-49,  52,  66,  69 

James  the  First  of  England 36 

JeflFerson,  Thomas 37 

Johnson,  Samuel 4-7 

Judex,  Roman 12 

Judge 4,  17,  21,  22,  34,  35,  53,  70 


75 

PAGB 

Kluber,  J.  B 19 

Lammasch,  Doctor 68 

Law  between  Nations.     See  International  Law. 

Law  of  Nature 15,  17 

Legal  cases 28,  67 

Maria,  the 14,  20 

Marine  league 36-41,  44-46,  65 

Martens,  Fedor  de 29,  68 

McKenna,  Justice 47 

McKinley,  President 47 

Mediate 6,  8-10 

Mediation 7,  8,  10,  11,  26,  27,  31,  32 

Mediator 7,  8,  10,  18,  22,  26-28,  70 

Moore,  John  Bassett 31,  65,  66 

Municipal  Law 2,  13,  17,  23,  31 

Netherlands,  the 21,  36,  42,  67 

Neutrality 65 

New  York 34 

North  American  Confederation,  1781-1789 33 

Oppenheim,  Lassa 68 

Paris  International  Tribunal,  1893 2,  25,  66,  67 

Paquele  Habana,  the 14,  46,  53,  63,  64 

Paxson,  Justice 51 

Pennsylvania 34,  50,  51 

Pelerhoff,  the 58,  60-63 

Philipps,  Edward 3-5 

Political  cases ". 28,  67 

Portugal 24 

Praetor,  Roman 12 

Puffendorf,  Samuel 15-18 


76 

PAGE 

Queen  vs.  Keyn 40-43i  53i  63-65 

Rawle,  Francis 12 

Renault,  Louis 23-26 

Revue  de  Droit  International  et  de  legislation  ComparSe 21 

Revue  GdnSrale  de  Droit  International  Public 25 

Rolin-Jaequemyns,  Gustave 20 

Russia 29,  30 

Sanderson  vs.  The  Pennsylvania  Coal  Company 50,  53 

Scott,  Sir  William.     See  Lord  Stowell. 

Snow,  Freeman 49 

Spain 42 

Springbok,  the 58-60,  63 

State,  two  meanings  of  the  word  in  American  history 33,  34 

Stowell,  Lord 14,  20,  37-40,  49,  52 

Three  Rules,  the,  of  the  Treaty  of  Washington 65,  66 

Twee  Gebroeders,  the,  Alberts  master 38 

Twee  Gebroeders,  the,  Northolt  masters 38 

United  States 26,  27,  34,  54,  55,  65,  67 

United  States  Supreme  Court 14.  46,  47,  52,  57-59,  62,  67,  70 

Vanderbilt,  the 61 

Vattcl,  Emerich  de 14,  18 

Washington,  Treaty  of 65 

Webster,  Noah 7-9 

Westlake,  John 26-29 

Worcester,  Joseph  E 9,   ^o 


A     000  691  981     5 


